Nimaben Rameshbhai Thakkar, Ahmedabad V. Dy.Commissioner of Income Tax,CPC,TDS, Gaziabad

ITA 3111/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6355 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2014-2015
• Appeal Filed On: 04-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RUPESH R SHAH
• Keywords: Principle of natural justice; Retrospective amendment

Judgement Text

ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S S GODARA JM] ITA NO. 3111/AHD/2015 ASSESSMENT YEAR: 2014-15 NIMABEN RAMESHBHAI THAKKAR ... ..........APPELLANT B-201, POOJAN APARTMENT, OPP. SEEMA HALL, 100 FT RING ROAD, SATELLITE, AHMEDABAD-380015 [PAN : ACHPT 7031 K] VS. THE DY. COMMISSIONER OF INCOME-TAX .......................RESPONDENT TDS, GHAZIABAD (UP) APPEARANCES BY: RUPESH R SHAH FOR THE APPELLANT MUDIT NAGPAL FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 01.01.2018 DATE OF PRONOUNCING THE ORDER : 04.01.2018 O R D E R PER PRAMOD KUMAR, AM: 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 4 TH SEPTEMBER 2015 PASSED BY THE BY THE CIT(A)-8, AHME DABAD, IN THE MATTER OF LEVY OF LATE FILING FEES UNDER SECTIO N 234E, IN THE COURSE OF PROCESSING UNDER SECTION 200A OF THE INCOME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2014-15. 2. THE GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOL LOWS:- 1. THE LD. CIT(A)-8, AHMEDABAD HAS ERRED IN LAW AN D ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF DCIT, TDS, CPC, GH AZIABAD FOR LEVY OF LATE FILING FEE U/S 234E THROUGH THE ORDER OF INTIM ATION U/S 200A OF IT ACT, 1961 BEFORE 01.06.2015 WITHOUT JURISDICTION AND NOT PERMISSIBLE EITHER IN LAW OR ON FACT. THE PRESENT PROCEEDINGS, THEREFORE , ARE REQUIRED TO BE QUASHED. 2. THE LD. CIT(A)-8, AHMEDABAD HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF LD. DCIT, TDS, CPC , GHAZIABAD WHILE PASSING THE ORDERS WITHOUT PROPERLY APPRECIATING TH E FACT AND THAT SHE FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIO NS, EXPLANATIONS AND ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 2 OF 8 INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED OR DER. THIS ACTION OF BOTH THE AUTHORITIES IS IN CLEAR BREACH OF LAW A ND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 2. THERE IS NO DISPUTE THAT THE ISSUE IN APPEAL IS COVERED, IN FAVOUR OF THE ASSESSEE, BY A SERIES OF DECISIONS OF THE TRIBUNAL, INCLUDING LEAD ORDER IN THE CASE OF SIBIA HEALTHCARE PRIVATE LIMITED VS. DCIT, [2015] 4 6 ITR (TRIB) 453], WHEREIN IT IS HELD THAT PRIOR TO 1 ST JUNE 2015, THE LEVY OF LATE FILING FEES UNDER SECT ION 234E COULD NOT HAVE BEEN EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A OF THE ACT. LEARNED CIT(A) HAS DULY NOTED THIS FACT, BUT THEN S HE HAS GONE ON AN ELABORATE ANALYSIS OF THE LEGAL POSITION AND HAS COME TO A DI FFERENT CONCLUSION. LEARNED CIT(A) HAS HELD THAT THE AMENDMENT TO SECTION 200A WITH EFFECT FROM 1 ST JUNE 2015 IS RETROSPECTIVE IN EFFECT. SHE HAS THUS JUSTIFIED LEVY OF LATE FILING FEES UNDER SECTION 234E IN THE COURSE OF PROCESSING UNDER SECTION 200A OF THE ACT, EVEN BEFORE THE AMENDMENT OF SECTION 200A WITH EFFECT FROM 1 ST JUNE 2015. THE STAND OF THE ASSESSING OFFICER WAS THUS UPHELD AND THE GRIEVANCE OF THE ASSESSEE THUS REJECTED. THE ASSESSEE IS NOT SATISFIED AND IS IN APPEAL BEFO RE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 4. WE FIND THAT THE ISSUE IN APPEAL IS COVERED BY L ARGER NUMBER OF DECISIONS, INCLUDING SEVERAL DECISIONS OF AHMEDABAD BENCHES OF THIS TRIBUNAL IN FAVOUR OF THE ASSESSEE. THESE DECISIONS CATEGORICALLY HOLD THAT THE AMENDMENT BROUGHT ABOUT IN SECTION 200A WITH EFFECT FROM 1 ST JUNE 2015 AND BY VIRTUE OF FINANCE ACT, 2015 IS PROSPECTIVE IN EFFECT AND IT CANNOT APPLY TO THE PE RIOD PRIOR TO 1 ST JUNE 2015. WHILE HOLDING SO, ONE OF THE COORDINATE BENCHES, IN THE C ASE OF SIBIA HEALTHCARE PRIVATE LIMITED (SUPRA), HAS HELD AS FOLLOWS:- '4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF T HE APPLICABLE LEGAL POSITION. IN ADDITION TO HIS ARGUMENT ON THE MERITS, LEARNED COU NSEL HAS ALSO INVITED OUR ATTENTION TO THE REPORTS ABOUT THE DECISIONS OF VAR IOUS HON'BLE HIGH COURTS, INCLUDING HON'BLE KERALA HIGH COURT, IN THE CASE OF NARATH MAPILA LP SCHOOL VS UNION OF INDIA [WP (C) 31498/2013(J)], HON'BLE K ARANATAKA HIGH COURT IN THE CASE OF ADITHYA BIZOR P SOLUTIONS VS UNION OF I NDIA [WP NO. 6918- 6938/2014(T-IT), HON'BLE RAJASTHAN HIGH COURT IN TH E CASE OF OM PRAKASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 2014] AND O F HON'BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UNION O F INDIA [WP NO. 771 OF 2014], GRANTING STAY ON THE DEMANDS RAISED IN RESPE CT OF FEES UNDER SECTION 234E. THE FULL TEXT OF THESE DECISIONS WERE NOT PRO DUCED BEFORE US. HOWEVER, AS ADMITTEDLY THERE ARE NO ORDERS FROM THE HON'BLE COURTS ABOVE RETRAINING US FROM OUR ADJUDICATION ON MERITS IN RESPECT OF THE I SSUES IN THIS APPEAL, AND AS, IN OUR HUMBLE UNDERSTANDING, THIS APPEAL REQUIRES A DJUDICATION ON A VERY SHORT LEGAL ISSUE, WITHIN A NARROW COMPASS OF MATERIAL FA CTS, WE ARE PROCEEDING TO DISPOSE OF THIS APPEAL ON MERITS. ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 3 OF 8 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 234 E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT 2012 AND WAS BROUGHT IN TO EFFECT FROM 1ST JULY 2012. THIS STATUTORY PROVISION IS AS FOLLOWS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUBSECTION (3) OF SEC TION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CAS E MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT I N ACCORDANCE WITH SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SE CTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO S UB-SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIV ERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE M AY BE, ON OR AFTER THE 1ST DAY OF JULY, 2012. 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WAS INSERTED BY THE FINANCE ACT 2009 WITH EFFECT FROM 1ST APRIL 201 0. THIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVANT POINT OF TIME, WAS AS F OLLOWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT S OURCE (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, OR A CORRECTI ON STATEMENT, HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFER RED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHAL L BE PROCESSED IN THE FOLLOWING MANNER, NAMELY:-- (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE 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 DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED U NDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200AND SECTIO N 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 4 OF 8 (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE 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: 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 ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PROCESS ING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMIN E THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDE R THE SAID SUBSECTION. 7. BY WAY OF FINANCE ACT 2015, AND WITH EFFECT FROM 1ST JUNE 2015, THERE IS AN AMENDMENT INSECTION 200A AND THIS AMENDMENT, AS STA TED IN THE FINANCE ACT 2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WITH EFFECT FROM THE 1ST DAY OF JUNE, 2015, NAMELY:-- '(C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT COMPUT ED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTIO N 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE B Y WAY OF TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 5 OF 8 8. IN EFFECT THUS, POST 1ST JUNE 2015, IN THE COURS E OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SECTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO BE MADE IN RESPECT OF THE 'FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTI ON 234E'. THERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN APPEAL BEFORE US I S THE INTIMATION UNDER SECTION 200A OF THE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AND, AS THE LAW STOOD, PRIOR TO 1ST JUNE 2015, THERE WAS NO ENABLING PROVISION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER SECTION 234E. WHILE EXAMINING THE CORRECTNESS OF THE INTIMATION UNDER SECTION 200A, WE HAVE TO BE GUIDED BY THE LIM ITED MANDATE OF SECTION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITT ED COMPUTATION OF AMOUNT RECOVERABLE FROM, OR PAYABLE TO, THE TAX DEDUCTOR A FTER MAKING THE FOLLOWING ADJUSTMENTS: (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF 'ARITHME TICAL ERRORS' AND 'INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN THE STATEMENT' - SECTION 200A(1)(A) . (B) AFTER MAKING ADJUSTMENT FOR 'INTEREST, IF ANY, COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT'. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABLE TO , OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBLE IN ACCORDANCE WITH T HE LAW AS IT EXISTED AT THAT POINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSID ERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS I NDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246A(A), AND, THE REFORE, THE CIT(A) OUGHT TO HAVE EXAMINED LEGALITY OF THE ADJUSTMENT MADE UN DER THIS INTIMATION IN THE LIGHT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT (A) HAS NOT DONE SO. HE HAS JUSTIFIED THE LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECTION 234E. THAT IS NOT THE ISSUE HERE. THE ISSUE IS WHETHER SU CH A LEVY COULD BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE ANSWER IS CLEARLY IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN R ESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITTED P OSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200A, NO SU CH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A, RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITHIN ONE YEA R FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STATEME NT IS FILED, AND AS THE RELATED TDS STATEMENT WAS FILED ON 19TH FEBRUARY 20 14, SUCH A LEVY COULD ONLY HAVE BEEN MADE AT BEST WITHIN 31ST MARCH 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF TH E CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUSTAINABLE IN LAW. W E, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED L EVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELIEF ACCOR DINGLY.' ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 6 OF 8 5. WE FIND THAT, RATHER THAN RESPECTFULLY FOLLOWING THE BINDING JUDICIAL PRECEDENT, THE CIT(A) HAS EMBARKED UPON A DETAILED ANALYSIS TO WRITE ANTITHESIS OF THE BINDING JUDICIAL PRECEDENT. THESE HEROICS ARE COMPLETELY O UT OF PLACE; ONCE A HIGHER TIER OF THE JUDICIAL HIERARCHY EXPRESSED THE VIEWS ON A PAR TICULAR SUBJECT AND UNLESS THE VIEWS SO EXPRESSED ARE SPECIFICALLY REVERSED OR OVE RRULED BY AN EVEN HIGHER JUDICIAL FORUM, THE LOWER TIER OF THE JUDICIAL HIERARCHY MUS T FOLLOW THE SAME. LEARNED CIT(A)S ACTION IN SEEKING TO DISTINGUISH THE BINDING JUDICI AL PRECEDENT, ON THE BASIS OF WHAT SHE PERCEIVES AS PROPER ANALYSIS OF LEGAL POSITION , IS AN ACT OF JUDICIAL INDISCIPLINE. WE CANNOT APPROVE AND ENDORSE THE SAME. AS LAID DO WN BY THE APEX COURT IN THE CASE OF AMBIKA PRASAD MISHRA VS. STATE OF UP, AIR 1 980 SC 1762 : (1980) 3 SCC 719 [P. 1764 OF AIR 1980 (SC)], 'EVERY NEW DISCOVER Y NOR ARGUMENTATIVE NOVELTY CANNOT UNDO OR COMPEL RECONSIDERATION OF A BINDING PRECEDENT......A DECISION DOES NOT LOSE ITS AUTHORITY 'MERELY BECAUSE IT WAS BADLY ARGUED, INDEQUATELY CONSIDERED OR FALLACIOUSLY REASONED....' SIMILARLY IN THE CASE OF KESHO RAM & CO. VS. UNION OF INDIA (1989) 3 SCC 151, IT WAS STATED BY THE SUPREM E COURT THUS :'THE BINDING EFFECT OF A DECISION OF THIS COURT DOES NOT DEPEND UPON WH ETHER A PARTICULAR ARGUMENT WAS CONSIDERED OR NOT, PROVIDED THE POINT WITH REFERENC E TO WHICH THE ARGUMENT IS ADVANCED SUBSEQUENTLY WAS ACTUALLY DECIDED IN THE E ARLIER DECISIONS.....'. WHEN SUCH ARE THE VIEWS OF HIGHEST COURT, THE EXERCISE R ESORTED TO BY THE CIT(A) WAS CLEARLY UNWARRANTED. WE ARE ALSO REMINDED OF HONB LE SUPREME COURTS OBSERVATIONS IN THE CASE OF ASSTT. COLLECTOR OF CEN TRAL EXCISE VS. DUNLOP INDIA LTD,. (1985) 154 ITR 172 (SC), WHERE THE HON'BLE SUPREME COURT ITSELF HAS QUOTED FROM THE DECISION OF HOUSE OF LORDS AS UNDER: WE DESIRE TO ADD AND AS WAS SAID IN CASSELL & CO. LTD. V. BROOME (1972) AC 1027 (HL), WE HOPE IT WILL NEVER BE NECESSARY FOR U S TO SAY SO AGAIN THAT 'IN THE HIERARCHICAL SYSTEM OF COURTS' WHICH EXISTS IN OUR COUNTRY, 'IT IS NECESSARY FOR EACH LOWER TIER', INCLUDING THE HIGH COURT, 'TO ACCEPT LOYALLY THE DECISION OF THE HIGHER TIERS'. 'IT IS INEVITABLE IN HIERARCHICA L SYSTEM OF COURTS THAT THERE ARE DECISIONS OF THE SUPREME APPELLATE TRIBUNAL WHICH D O NOT ATTRACT THE UNANIMOUS APPROVAL OF ALL MEMBERS OF THE JUDICIARY. .. BUT THE JUDICIAL SYSTEM ONLY WORKS IF SOMEONE IS ALLOWED TO HAVE THE LAST W ORD, AND THAT LAST WORD, ONCE SPOKEN, IS LOYALLY ACCEPTED. '...THE BETTER WI SDOM OF THE COURT BELOW MUST YIELD TO THE HIGHER WISDOM OF THE COURT ABOVE. THAT IS THE STRENGTH OF THE HIERARCHICAL JUDICIAL SYSTEM. 6. WE WISH AND HOPE THAT LEARNED CIT(A) TAKES NOTE OF THESE OBSERVATIONS OF HONBLE SUPREME COURT AND PERMITS HER BETTER WISDOM TO YIELD THE HIGHER WISDOM OF THE INCOME TAX APPELLATE TRIBUNAL, WHICH IS PLACED HIGHER IN THE JUDICIAL HIERARCHY VIS-A-VIS THE CIT(A). 7. HAVING SAID THAT, WE MAY ALSO ADD THAT THE REASO NING OF THE LEARNED CIT(A) IS BASED ON THE PROPOSITION THAT THE AMENDMENT BROUGHT ABOUT BY THE FINANCE ACT, 2015 IS A CURATIVE AMENDMENT AND THEREFORE, IT IS R ETROSPECTIVE IN EFFECT. IN COMING TO THIS CONCLUSION, SHE HAS BEEN GUIDED BY THE DECI SION IN THE CASE OF RAJEEV KUMAR ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 7 OF 8 AGARWAL VS. ADDL. CIT, [(2014) 34 ITR (TRIB) 479], WHICH IS NOW APPROVED BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANS AL LAND MARK TOWNSHIP (P) LTD, (2015) 377 ITR 635 (DEL), WHEREIN INSERTION OF SECO ND PROVISO TO SECTION 40(A)(IA) WAS HELD TO BE RETROSPECTIVE IN EFFECT BUT WHAT SHE MISSED OUT IN THE PROCESS WAS THAT IT IS ONLY ELEMENTARY THAT WHEN A LEGISLATION CONFERS A BENEFIT ON THE TAXPAYER BY RELAXING THE RIGOUR OF PRE-AMENDMENT LAW, AND WHEN SUCH A BENEFIT APPEARS TO HAVE BEEN THE OBJECTIVE PURSUED BY THE LEGISLATURE, IT W OULD A PURPOSIVE INTERPRETATION GIVING IT A RETROSPECTIVE EFFECT BUT WHEN A TAX LEG ISLATION IMPOSES A LIABILITY OR A BURDEN, THE EFFECT OF SUCH A LEGISLATIVE PROVISION CAN ONLY BE PROSPECTIVE. IN HONBLE SUPREME COURTS FIVE-JUDGE CONSTITUTION BENCHS LAN DMARK JUDGMENT, IN THE CASE OF CIT VS. VATIKA TOWNSHIPS (P) LTD. (2014) 271 CTR (S C) 1 : (2014) 109 DTR (SC) 33 : 2014 TIOL 78 SC, THE LEGAL POSITION IN THIS REGAR D HAS BEEN VERY SUCCINCTLY SUMMED UP BY OBSERVING THAT IF A LEGISLATION CONFERS A BENEFIT ON SOME PERSONS BUT WITHOUT INFLICTING A CORRESPONDING DETRIMENT ON SOM E OTHER PERSON OR ON THE PUBLIC GENERALLY, AND WHERE TO CONFER SUCH BENEFIT APPEARS TO HAVE BEEN THE LEGISLATORS OBJECT, THEN THE PRESUMPTION WOULD BE THAT SUCH A L EGISLATION, GIVING IT A PURPOSIVE CONSTRUCTION, WOULD WARRANT IT TO BE GIVEN A RETROS PECTIVE EFFECT. HONBLE SUPREME COURT HAS OBSERVED THAT THIS (THE FOREGOING ANALYSIS) EXACTLY IS THE JUSTIF ICATION TO TREAT PROCEDURAL PROVISIONS AS RETROSPECTIVE. THEI R LORDSHIPS THEN FURTHER OBSERVED THAT, IN GOVERNMENT OF INDIA & ORS. VS. INDIAN TOB ACCO ASSOCIATION (2005) 7 SCC 396 THE DOCTRINE OF FAIRNESS WAS HELD TO BE RELEVAN T FACTOR TO CONSTRUE A STATUTE CONFERRING A BENEFIT, IN THE CONTEXT OF IT TO BE GI VEN A RETROSPECTIVE OPERATION AND THAT THE SAME DOCTRINE OF FAIRNESS, TO HOLD THAT A STATU TE WAS RETROSPECTIVE IN NATURE, WAS APPLIED IN THE CASE OF VIJAY VS. STATE OF MAHAR ASHTRA & ORS. (2006) 6 SCC 286. IT WAS HELD THAT WHERE A LAW IS ENACTED FOR THE BEN EFIT OF COMMUNITY AS A WHOLE, EVEN IN THE ABSENCE OF A PROVISION THE STATUTE MAY BE HE LD TO BE RETROSPECTIVE IN NATURE . THEIR LORDSHIPS ALSO NOTED THAT THIS RETROSPECTIVIT Y BEING ATTACHED TO BENEFIT THE PERSONS, IS IN SHARP CONTRAST WITH THE PROVISION IM POSING SOME BURDEN OR LIABILITY WHERE THE PRESUMPTION ATTACHES TOWARDS PROSPECTIVIT Y. GIVEN THIS UNAMBIGUOUS LEGAL POSITION, SETTLED BY AN AUTHORITY NO LESS THAN HON BLE SUPREME COURT, THE AMENDMENT IN SECTION 200A W.E.F. 1 ST JUNE 2015, IN OUR HUMBLE UNDERSTANDING CANNOT BE RETROSPECTIVE IN EFFECT. WE REJECT THE S TAND OF THE CIT(A) ON MERITS AS WELL. 8. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED LEVY OF LATE FILING FEE U/S 234E OF RS.39,200/-. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED PRONOUNCED IN THE OPEN COURT TODAY ON THE 04 TH DAY OF JANUARY, 2018. SD/- SD/- S S GODARA PRAMOD K UMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 4 TH DAY OF JANUARY, 2018 *BT ITA NO. 3111/AHD/2015 NIMABEN RAMESHBHAI THAKKAR VS. DCIT ASSESSMENT YEAR : 2014-15 PAGE 8 OF 8 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ......4 PAGES DICTATION PAD, AS DICTATED BY HONBLE AM, IS ATTACHED 02.01.2018 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 02.01.2018...... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: ..04.01.2018...... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: ... 04.01.2018. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : ... 05.01.2018................... 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: .. 8. DATE OF DESPATCH OF THE ORDER: ......