M/s. Samikaran Learning Pvt. Ltd., Delhi V. DCIT, Delhi

ITA 4051/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3671 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 15-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Recovery proceedings; Retrospective amendment; Cost of acquisition; Right to appeal
• Section: 154

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G, DELHI .. , , , ! BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NOS.4050 TO 4054/DEL/2016 ASSESSMENT YEARS: 2014-15 & 2015-16 M/S SAMIKARAN LEARNING PRIVATE LIMITED, S-533, 3 RD FLOOR, GREATER KAILASH, PART-2, DELHI-110048 / VS. TDS OFFICER, AAYAKAR BHAVAN, LAXMI NAGAR, DELHI-110092 ( %& /ASSESSEE) ( / REVENUE) P.A. NO. - AANCS5912R + / DATE OF HEARING : 09/11/2017 + / DATE OF ORDER: 09/11/2017 / REVENUE BY SHRI S.S. RANA CIT -DR %& / ASSESSEE BY SHRI PRATAP GUPTA ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 2 / O R D E R PER BENCH THIS BUNCH OF FIVE APPEALS IS BY THE ASSESSEE AGAIN ST THE IMPUGNED ORDERS ALL DATED 29/04/2016 OF THE LD. FIRST APPELLATE AUTHORITY, NEW DELHI, CHALLENGING THE CON FIRMATION OF LEVY OF LATE FILING FEE OF RS.1600/-, RS.6800/- AND RS.6800/- (AY 2014-15), RS.14,400/- & RS.14,400/- ( A.Y. 2015-16), RESPECTIVELY, U/S 234E AGAINST THE ORDER PASSED U/S 200A OF THE INCOME TAX ACT, 1961 (HEREINAFTER T HE ACT). 2. DURING HEARING, SHRI PRATAP GUPTA, LD. COUNSEL FOR THE ASSESSEE, CLAIMED THAT ON IDENTICAL FACT, THE I SSUE UNDER HAND IS COVERED BY THE DECISION OF THE PUNE BENCH O F THE TRIBUNAL IN THE CASE OF GAJANAN CONSTRUCTIONS VS DC IT, CPC (TDS), (2016) 73 TAXMAN.COM 380 (PUNE TRIB.). THE A SSESSEE HAS CHALLENGED THE POWER OF THE OFFICER TO CHARGE/C OLLECT FEE AS PER THE PROVISION OF SECTION 234E, WHETHER VESTE D PRIOR TO SUBSTITUTION OF CLAUSE (C) TO SECTION 200A OF THE A CT BY THE FINANCE ACT, 2015 W.E.F. 01/06/2015 AND ENABLING PR OVISION IN SECTION 200A FOR RAISING DEMAND IN RESPECT OF LE VY OF FEE U/S 234E OF THE ACT. ON THE OTHER HAND, SHRI S. S.R ANA, LD. ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 3 CIT-DR, CONTENDED THAT THE LD. FIRST APPELLATE AUTH ORITY HAS RELIED UPON THE DECISION IN THE CASE OF RASHMIK ANT KUNDALIA VS UOI (2015) 54 TAXMAN.COM 200 (BOM.), LAXMINIRMAN BANGALORE PVT. LTD. VS DCIT (2015) 60 TAXMAN.COM 144 (KARNATAKA) AND M/S DUNDLOD SHISHAN SANSTHAN VS UOI (2015) 63 TAXMAN.COM 243 (RAJ.). TH E LD. CIT-DR CONTENDED THAT THE JAIPUR BENCH OF THE TRIBU NAL IN THE CASE OF M/S GENUS CONSORTIUM VS DCIT (ITA NO.88 ,89, AND 90/JP/2017), ORDER DATED 09/03/2017, DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. COUNSEL FOR THE AS SESSEE CONTENDED THAT THE FACTS BEFORE HONBLE HIGH COURT WERE DIFFERENT, WHICH ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT APPEAL AND FURTHER THE PUNE BENCH OF THE TRIBUNAL D ULY CONSIDERED THE DECISIONS RENDERED BY HONBLE HIGH C OURTS AND THEREAFTER REACHED TO PARTICULAR CONCLUSION. TH IS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE AD VERTING FURTHER, WE ARE REPRODUCING HEREUNDER SECTION 200A OF THE ACT FOR READY REFERENCE:- ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 4 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDU CTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL 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 INFORMATIO N IN THE STATEMENT; ( B ) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE B ASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; 8 [( C ) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE 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 COMPUTED UNDER CLAUSE ( B ) AND CLAUSE ( C ) AGAINST ANY AMOUNT PAID UNDERSECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT P AID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; ( E ) AN INTIMATION SHALL BE PREPARED OR GENERATED AND 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 PURS UANCE OF THE DETERMINATION UNDER CLAUSE ( D ) 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 FINANCIA L YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORREC T CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMEN T' SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT ( I ) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER E NTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; ( II ) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOURCE , 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 PR OCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUS LY DETERMINE THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION. WE ARE ALSO REPRODUCING HEREUNDER SECTION 234E OF T HE ACT FOR READY REFERENCE:- FEE FOR DEFAULT IN FURNISHING STATEMENTS. ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 5 234E. (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 SUB-SECTION (3) OF SECTION 206C , HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURI NG 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 CASE MAY BE. (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STAT EMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB- SECTION (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 SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECTED AT SOUR CE, AS THE CASE MAY BE, ON OR AFTER THE 1ST DAY OF JULY, 2012. 2.2. A CONJOINT READING FOR AFORESAID SECTIONS, IF ANALYZED, SECTION 200A OF THE ACT DEALS WITH PROCES SING OF STATEMENT OF TAX DEDUCTED AT SOURCE, WHEREAS, SECTI ON 234E OF THE ACT DEALS WITH FEE FOR DEFAULT IN FURNISHING STATEMENTS. NOW, WE SHALL EXAMINE THE DECISION OF THE PUNE BENC H OF THE TRIBUNAL IN THE CASE OF GAJANAN CONSTRUCTIONS (SUPR A), RELIED UPON BY THE ASSESSEE, THEREFORE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE AFORESAID O RDER FOR READY REFERENCE AND ANALYSIS:- THIS BUNCH OF APPEALS FILED BY DIFFERENT ASSESSEE ARE DIRECTED AGAINST RESPECTIVE ORDERS OF CIT(A) RELATING TO DIFFERENT A SSESSMENT YEARS AGAINST RESPECTIVE INTIMATION ISSUED UNDER SECTION 200A(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 2. BUNCH OF PRESENT APPEALS RELATING TO DIFFERENT ASS ESSEE WERE HEARD TOGETHER ON DIFFERENT DATES AND ARE BEING DISPOSED OF BY THI S CONSOLIDATED ORDER AS THE ISSUE RAISED IN ALL THESE APPEALS WAS SIMILAR. ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 6 3. IT MAY BE PERTINENT TO MENTION HERE THAT THERE WAS A DELAY OF 3 DAYS IN FILING OF APPEAL IN ITA NO.1337/PN/2015 TO ITA NO.1 339/PN/2015 FOR WHICH THE ASSESSEE HAS FILED A CONDONATION PETITION . AFTER CONSIDERING THE SAME, THE DELAY IN FILING OF THESE APPEALS IS CONDO NED AND THE APPEALS ARE ADMITTED FOR ADJUDICATION. 4. THE ISSUE ARISING IN ALL THE APPEALS BEFORE US IS AGAINST INTIMATION ISSUED UNDER SECTION 200A OF THE ACT AND / OR ORDER PASSED UNDER SECTION 154 OF THE ACT IN CHARGING FEES PAYABLE UNDER SECTION 234E OF THE ACT. WE THEREFORE TAKE UP ITA NO.1292/PN/2015 AS THE LEAD CASE. THE I SSUE RAISED IN THE SET OF APPEALS IS CHARGING OF FEES PAYABLE UNDER SECTION 2 34E OF THE ACT PRIOR TO AMENDMENT TO SECTION 200A(1)(C) OF THE ACT VIDE FINANCE ACT, 2015 W.E.F. 01.06.2015, WHILE PROCESSING THE TDS RETURNS. THE A SSESSEE HAS ALSO POINTED THAT THE LEGISLATURE HAD INSERTED CLAUSE (C) TO SEC TION 200A(1) OF THE ACT SPECIFICALLY W.E.F. 01.06.2015 AND WHERE THERE IS N OTHING TO SUGGEST THAT THE SAID AMENDMENT WAS CLARIFICATORY OR RETROSPECTIVE I N NATURE, HENCE IN RESPECT OF TDS STATEMENTS FILED FOR THE PERIOD PRIOR TO 01. 06.2015, LATE FEES CHARGED UNDER SECTION 234E OF THE ACT COULD NOT BE LEVIED I N THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT. 5. IN ORDER TO ADJUDICATE THE ISSUE RAISED IN THESE A PPEALS, FEW MATERIAL FACTS HAVE TO BE CONSIDERED. THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE OUT OF PAYMENTS MADE ON ACCOUNT OF SALARY, INTEREST, ET C. FOR THE RESPECTIVE QUARTERS IN THE ACCOUNTING PERIOD. THE ACT REQUIRED THE ASSESSEE TO FILE QUARTERLY TDS RETURNS INTIMATING THE TAX DEDUCTED A T SOURCE FROM VARIOUS PAYMENTS MADE IN EACH OF THE QUARTER. THE SAID TDS RETURNS ARE MANDATED TO BE FILED WITHIN STIPULATED PERIOD. ADMITTEDLY, IN T HE PRESENT SET OF APPEALS, TDS RETURNS WERE FILED BELATEDLY. THE ASSESSING OFF ICER WHILE PROCESSING THE TDS RETURNS ISSUED INTIMATION TO THE RESPECTIVE ASS ESSEE UNDER SECTION 200A OF THE ACT AND LEVIED LATE FILING FEES UNDER SECTIO N 234E OF THE ACT. AGGRIEVED BY THE SAID INTIMATION, IN SOME OF THE CA SES, THE ASSESSEE IN SOME CASES FILED AN APPLICATION UNDER SECTION 154 OF THE ACT ALSO. HOWEVER, THE SAME WERE DISMISSED BY THE RESPECTIVE ASSESSING OFF ICERS. 6. IN APPEAL, THE CIT(A) HELD THAT THE APPEAL OF ASSE SSEE WAS NOT MAINTAINABLE, IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA V. UNION OF INDIA [2015] 54 TAXMANN.COM 200/229 TAXMAN 596/373 ITR 268. FURTHER, EVEN ON ME RITS, THE CONTENTION OF ASSESSEE THAT THE ASSESSING OFFICER WAS NOT EMPOWER ED TO RAISE THE DEMAND UNDER SECTION 234E OF THE ACT BY PASSING ORDER UNDE R SECTION 200A OF THE ACT WAS HELD TO BE NOT LEGALLY TENABLE. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDERS OF AU THORITIES BELOW. 8. SHRI SANKET JOSHI, LEARNED COUNSEL POINTED OUT THA T THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS TWO-FOLD WHETHER THE APPEA L FILED BY THE ASSESSEE IS MAINTAINABLE AND WHETHER ANY FEES COULD BE LEVIED U NDER SECTION 234E OF THE ACT PRIOR TO 01.06.2015, WHILE ISSUING INTIMATION U NDER SECTION 200A OF THE ACT. OUR ATTENTION WAS DRAWN TO THE PROVISIONS OF S ECTION 200(3) OF THE ACT, WHEREIN THE DUTY OF PERSON WAS TO FILE THE STATEMEN T WITHIN PRESCRIBED TIME. REFERENCE WAS MADE TO RULE 31A OF THE INCOME TAX RU LES, 1962 (IN SHORT 'RULES'), WHICH PROVIDES THE TIME LIMIT TO FILE THE STATEMENT OF TAX DEDUCTED AT ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 7 SOURCE. HE FURTHER POINTED OUT THAT THE ACT REQUIRE S QUARTERLY STATEMENT TO BE FILED WITHIN 15 DAYS OF CLOSE OF THE QUARTER. THERE AFTER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT CLAUSE (C) TO SECTION 200A(1) OF THE ACT WAS INSERTED W.E.F. 01.0 6.2015, UNDER WHICH LEVY OF FEES WAS PROVIDED FOR LATE FILING THE QUARTERLY STATEMENTS OF TDS. HE FURTHER STATED THAT EARLIER TO THAT, THERE WAS NO P ROVISION OF LEVY OF FEES. SIMILARLY, AMENDMENTS WERE MADE IN SECTION 246A OF THE ACT. THE FIRST ISSUE RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT WHERE THE ASSESSING OFFICER HAD ISSUED THE INTIMATI ON UNDER SECTION 200A OF THE ACT, THEN THE SAME IS APPEALABLE UNDER WHICH FE ES HAD BEEN CHARGED UNDER SECTION 234E OF THE ACT. AN APPLICATION FOR C ONDONING THE DELAY IN FILING THE APPEALS WAS ALSO FILED AS REFERRED TO BY THE LEARNED AUTHORIZED REPRESENTATIVE. REFERRING TO THE ORDER PASSED BY TH E CIT(A), THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ORDER OF ASSESSING OFFICER WAS NOT PASSED UNDER SECTION 234E OF THE ACT BUT WAS PASSED UNDER SECTION 200A OF THE ACT. THE CIT(A) HA D RELIED ON THE RATIO LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA'S CASE ( SUPRA ), WHICH SETTLED THE CONSTITUTIONAL VALIDITY OF SEC TION 234E OF THE ACT. THE ARGUMENTS BEFORE THE HON'BLE BOMBAY HIGH COURT WERE THAT THERE WAS NO RIGHT TO INSERT THE SAID SECTION. HOWEVER, NO AR GUMENTS WERE ADVANCED IN RESPECT OF APPLICABILITY OF SAID SECTION FOR THE PE RIOD PRIOR TO 01.06.2015. HE FURTHER POINTED OUT THAT FIRSTLY, THERE HAS TO BE M ECHANISM TO CHARGE FEES UNDER SECTION 234E OF THE ACT AND PRIOR TO INSERTIO N OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01.06.2015, THERE WAS NO MECHANISM TO CHARGE FEES BY THE ASSESSING OFFICER. HE STRESSED THAT WHERE AN ORDER HAS TO BE PASSED UNDER SECTION 200A OF THE ACT FOR CHARGING FEES UND ER SECTION 234E OF THE ACT, THEN THE LEGISLATURE SHOULD PROVIDE THE MACHIN ERY FOR CHARGING THE SAID FEES UNDER SECTION 234E OF THE ACT, WHICH WAS PROVI DED W.E.F. 01.06.2015. HE FURTHER STRESSED THAT WHERE THE ASSESSEE HAD DEN IED HIS LIABILITY TO BE ASSESSED, THEN THE RIGHT TO APPEAL IS PROVIDED UNDE R SECTION 246A(1)(A) OF THE ACT AND WHERE THE ASSESSEE SAYS THAT HE DENIES HIS LIABILITY, THEN THE SAME HAS TO BE INTERPRETED LIBERALLY. REFERRING TO THE DECIS ION OF HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA'S CASE ( SUPRA ), RELIED UPON BY THE CIT(A), THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IT ONLY SETTLED THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT AND HENCE, THE SAID RATIO HAD TO BE APPLIED ACCORDINGLY AND IT CAN NOT BE SAID THAT CHARGING OF LATE FEES UNDER SECTION 234E OF THE ACT BY THE ASSE SSING OFFICER WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT CA N BE CHARGED PRIOR TO 01.06.2015. THE LEARNED AUTHORIZED REPRESENTATIVE F OR THE ASSESSEE FURTHER POINTED OUT THAT THE ISSUE OF CHARGING OF FEES UNDE R SECTION 234E OF THE ACT AND RAISING OF DEMAND UNDER SECTION 200A OF THE ACT HAS BEEN ADJUDICATED BY SERIES OF CASES BY DIFFERENT TRIBUNALS AND COPIES O F SAME WERE FILED. 9. FURTHER, IT WAS POINTED OUT THAT THE CIT(A) HAS WR ONGLY APPLIED THE RATIO LAID DOWN BY THE HON'BLE HIGH COURT OF KARNATAKA IN LAKSHMI NIRMAN, BANGALORE (P.) LTD. V. DY. CIT [2015] 60 TAXMANN.COM 144/234 TAXMAN 275. HE STATED THAT IT WAS NOT THE CASE OF ASSESSEE THAT FEES WAS ILLEGAL BUT SINCE THERE WAS NO MECHANISM PROVIDED TO LEVY THE F EES UNDER SECTION 200A OF THE ACT, WHICH WAS LATER PROVIDED W.E.F. 01.06.2 015 AS PER THE AMENDMENT, THEN PRIOR TO THAT DATE, NO FEES COULD BE CHARGED F ROM THE ASSESSEE. SECOND ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 8 ASPECT OF THE SAME WAS THAT THE ASSESSING OFFICER H AD NO AUTHORITY TO LEVY THE FEES PRIOR TO 01.06.2015. HE REFERRED TO THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN CIT V. B.C. SRINIVASA SETTY [1981] 128 ITR 294/5 TAXMAN 1, WHICH HAD LAID DOWN THE PROPOSITION THAT IN CASE S WHERE THE COST OF ACQUISITION OF THE ASSETS WERE NIL, THEN NO CAPITAL GAINS HAS TO BE COMPUTED IN THE HANDS OF ASSESSEE SINCE THERE WAS NO MECHANISM TO CHARGE CAPITAL GAINS. HE FURTHER STRESSED THAT THE HON'BLE RAJASTHAN HIGH COURT IN DUNDLOD SHIKSHAN SANSTHAN V. UNION OF INDIA [2015] 235 TAXMAN 446/63 TAXMANN.COM 243, JUDGMENT DATED 28.07.2015 HAD ADJU DICATED THE ISSUE RELATING TO WHETHER THE FEES CHARGED IS LEGAL OR IL LEGAL AND HAD NOT TOUCHED UPON THE MECHANISM TO LEVY THE FEES. IN THIS REGARD , THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE RAT IO LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN CIT V. THANA ELECTRICITY SUPPLY LTD. [1994] 206 ITR 727, WHEREIN WHILE EXPLAINING THE PRINCIPLE OF OBITER DICTA IT WAS POINTED OUT THAT CASUAL REPRESENTATION IN ORDER WOULD NOT DECID E THE ORDER IN ONE WAY OR THE OTHER. THE LEARNED AUTHORIZED REPRESENTATIVE FO R THE ASSESSEE POINTED OUT THAT THE PROVISIONS OF SECTION 200A OF THE ACT WERE INSERTED EARLIER. HOWEVER, SECTION 234E OF THE ACT WAS INSERTED LATER AND WHER E SECTION 200A OF THE ACT DOES NOT PROVIDE FOR LEVY OF FEES BY THE ASSESSING OFFICER TILL BEFORE THE AMENDMENT W.E.F. 01.06.2015, THERE WAS NO MERIT IN CHARGING THE SAID LEVY. HE FURTHER POINTED OUT THAT AFTER THE AMENDMENT W.E .F. 01.06.2015, THE ASSESSING OFFICER HAD POWER TO MAKE ADJUSTMENTS IN INTIMATION PASSED UNDER SECTION 200A OF THE ACT ITSELF. 10. THE LD. COUNSEL FOR THE ASSESSEE FURTHER POINTED O UT THAT INSERTION MADE W.E.F. 01.06.2015 WAS PROSPECTIVE IN NATURE AND HEN CE, HAD TO BE APPLIED FROM 01.06.2015 ITSELF. HE RELIED ON THE MEMO EXPLA INING FINANCE BILL, 2015 WHILE INTRODUCING CLAUSE (C) TO SECTION 200A(1) OF THE ACT. HE FURTHER SUPPORTED THE ARGUMENTS OF EARLIER COUNSEL THAT PRI OR TO 01.06.2015, WHERE THERE WAS NO POWER GIVEN UNDER SECTION 200A OF THE ACT TO THE ASSESSING OFFICER TO CHARGE THE SAID FEES, THE PRESENT BUNCH OF APPEALS BEING FILED BY DIFFERENT ASSESSEE RELATED TO THE PERIOD PRIOR TO 0 1.06.2015 AND HENCE, NO FEES COULD BE CHARGED UNDER SECTION 234E OF THE ACT. HE FURTHER POINTED OUT THAT IN CIT V. VATIKA TOWNSHIP (P.) LTD. [2014] 367 ITR 466/227 TAXMAN 121/49 TAXMANN.COM 249 (SC), THE HON'BLE SUPREME COURT HEL D THAT ANY AMENDMENT CAN BE CONSIDERED RETROSPECTIVE IN ORDER TO REMOVE THE HARDSHIP OF ASSESSEE BUT NOT OF THE DEPARTMENT. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE AMENDMENT BROUGHT IN BY THE FINANCE ACT AND FURTHER PLACED RELIANCE ON THE RATIO LAID DOWN BY CHENNAI BENCH OF TRIBUNAL IN G. INDIRANI V. DY. CIT [2015] 43 CCH 511 AND AHMEDABAD BENCH OF TRIBUNAL IN DHANLAXMI DEVELOPERS V. DY. CIT [2016] 46 CCH 1 . 11. THE LEARNED DR POINTED OUT THAT THE ISSUE ARISING IN THE PRESENT SET OF APPEALS IS WHETHER THE PAYMENT OF LATE FEES UNDER S ECTION 234E OF THE ACT CAN BE CHARGED UNDER SECTION 200A OF THE ACT, WHEREIN C LAUSE (C) WAS INSERTED W.E.F. 01.06.2015. HE FURTHER REFERRED TO THE CHAPT ER XVIIB OF THE ACT, WHICH PROVIDE DEDUCTION OF TAX AT SOURCE, WHEREIN P AYER OF SUM BE IT IS SALARY, INTEREST OR COMMISSION, ETC . HAS CERTAIN OBLIGATIONS AND THEY HAVE BEEN MADE RESPONSIBLE, WHEREIN THE PAYMENTS ARE MADE OR CREDITED TO THE ACCOUNT OF PAYEE, THEN THE DUTY OF THE DEDUCTOR IS TO DEDUC T TAX. SECTIONS 192 TO ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 9 194LD, 195 TO 196D OF THE ACT WERE VARIOUS PROVISIO NS FOR DEDUCTING TAX AT SOURCE. SECTION 199 OF THE ACT PROVIDES CREDIT OF T AX DEDUCTED AT SOURCE AND SECTION 200 OF THE ACT LAYS DOWN THE DUTIES OF PERS ON RESPONSIBLE TO DEDUCT THE TAX. HE FURTHER STRESSED THAT IT WAS MANDATORY THAT AFTER DEDUCTION, THE DEDUCTOR SHALL PAY THE TAX IN THE ACCOUNT OF TREASU RY, THERE WAS NO DISCRETION WITH THE DEDUCTOR VIS-A-VIS RATE OF DEDUCTION, AT WHAT TIME AND WHEN TO BE PAID. THE LEARNED CIT-DR FURTHER STATED THAT TDS WA S ONE OF THE MODES OF RECOVERY WHICH WORKS ON THE PRINCIPLE OF PAYING AS YOU EARN. HE FURTHER STATED THAT TDS IS SOURCE OF REVENUE TO THE GOVERNM ENT TO CARRY OUT VARIOUS PROGRAMMES. ONCE THE TAX WAS DEDUCTED, THEN IT WAS NOT THE DEDUCTOR'S MONEY BUT IT WAS DEDUCTED ON ACCOUNT OF THIRD PARTY , WHO CLAIMS IT AS PART OF HIS TAX PAYMENT. THE OBLIGATION ON THE DEDUCTOR WAS TO COLLECT THE SAID TAX DEDUCTED AT SOURCE AND DEPOSIT THE SAME AND THE DED UCTEE HAD ALL THE RIGHTS TO CLAIM THE BENEFIT OF SUCH TAX DEDUCTED BY THE DEDUC TOR. EARLIER, UNDER THE ACT, THE ONUS WAS UPON THE DEDUCTOR TO ISSUE CERTIFICATE FOR CLAIMING TDS PAYMENTS. HOWEVER, SINCE THERE WERE VARIOUS FRAUDS, BECAUSE OF CERTIFICATE ISSUED BY THE DEDUCTORS, THE PROVISIONS OF SUB-SECT ION 200(3) OF THE ACT WERE INSERTED W.E.F. 01.04.2005. HE FURTHER EXPLAINED TH AT ANY PERSON REFERRED TO IN SECTION 192(1A) OF THE ACT SHALL 'IMPLIES THAT IT W AS OBLIGATORY AND MANDATORY THAT STATEMENT OF TAX DEDUCTED HAD TO BE FILED WITHIN PRESCRIBED TIME LIMIT'. HE REFERRED TO THE PROVISO TO SECTION 200(3) OF THE ACT, WHICH WAS INSERTED W.E.F. 01.10.2014, WHEREIN IT IS PROVI DED THAT CORRECTION STATEMENT FOR RECTIFICATION CAN ALSO BE ISSUED. 12. THE LEARNED DR FURTHER POINTED OUT THAT BEFORE INS ERTION OF LEVY OF FEES UNDER SECTION 234E OF THE ACT, THERE WAS PROVISION OF LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT. THIS AMENDMENT WAS W .E.F. 01.04.2005, HENCE WHERE THE STATEMENT WAS NOT FILED BY THE DEDUCTOR, PENAL PROVISIONS WERE ATTRACTED AND THE SAME WAS WITH RESPECT TO QUARTERL Y RETURNS TO BE FILED. THE LEARNED DR FURTHER POINTED OUT THAT THE PROVISIONS OF SECTION 200(3) OF THE ACT AND PENALTY UNDER SECTION 272A(2)(K) OF THE ACT WERE SIMULTANEOUSLY INTRODUCED. HE FURTHER REFERRED TO THE PROVISIONS O F SECTION 200A OF THE ACT WHICH WERE INTRODUCED W.E.F. 01.04.2010 BY THE FINA NCE (NO.2) ACT, 2009 FOR FURNISHING OF TDS RETURNS. FURTHER, REFERENCE WAS M ADE TO SUB-CLAUSES UNDER SECTION 200A(1) OF THE ACT, WHEREIN CLAUSE (A) REFE RS TO THE SUM DEDUCTED AND CLAUSE (B) REFERS TO THE INTEREST, IF ANY; AND W.E. F. 01.07.2012, NEW SECTION WAS INTRODUCED I.E. 234E OF THE ACT, UNDER WHICH IT WAS PROVIDED THAT PERSON SHALL BE LIABLE TO DEPOSIT THE TAX DEDUCTED AT SOUR CE, HENCE THE PROVISIONS WERE MANDATORY I.E. THE LIABILITY WAS ON THE DEDUCTOR TO FURNISH THE S TATEMENT AND IN CASE OF ANY DEFAULT IN FURNISHING STATEMENT, FEES WAS PROVIDED UNDER THE SAID SECTION. HE FURTHER REFERRED TO THE SECOND PROVISO, WHICH WAS INSERTED W.E.F. 01.07.2012, WHEREIN IT IS PROVIDED THAT UNDER CLAUSE (K) TO SECTION 272A(1) OF THE ACT, NO PENALTY IS TO BE LEV IED. HE STRESSED THAT AFTER SUCH AN AMENDMENT, THE PROVISIONS OF SECTION 234E O F THE ACT WERE COMPULSORILY APPLICABLE. THE LEARNED DR FURTHER POI NTED OUT THAT PENALTY FOR NON-FURNISHING OF STATEMENT UNDER SECTION 200(3) OF THE ACT IS PROVIDED UNDER SECTION 271H OF THE ACT, WHERE THE WORD USED IS 'MAY'. HOWEVER, UNDER SECTION 234E OF THE ACT, FOR LEVY OF FEES, THE WORD USED IS 'SHALL' AND IT IS FURTHER PROVIDED THAT THE AMOUNT OF FEES, SHALL NOT EXCEED THE TAX DEDUCTED AT SOURCE. REFERRING TO SUB-SECTION (3), IT WAS POINTE D OUT THAT THE AMOUNT OF ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 10 FEES IS TO BE DEPOSITED BEFORE DELIVERING THE STATE MENT. HE STRESSED THAT THE PROVISIONS OF SECTION 234E OF THE ACT WAS CHARGING SECTION WHEREIN THE LIABILITY WAS UPON THE ASSESSEE THAT HE SHALL PAY A ND WHEN THE SAME IS TO BE PAID IS ALSO SPECIFIED THEREIN. THE LEGISLATURE IN THIS REGARD WAS CLEAR THAT DEFAULTER ITSELF WOULD MAKE THE COMPLIANCE. HENCE, THE QUESTION IS IF AS PER SECTION 234E(1) OF THE ACT, THE ASSESSEE IS LIABLE TO PAY LATE FEES AND AS PER SUB-SECTION (3), LATE FEES HAS TO BE PAID BEFORE FI LING THE STATEMENT AND WHERE THE PROVISIONS OF BOTH SUB-SECTION (1) AND (3) TO S ECTION 234E OF THE ACT ARE MANDATORY, SINCE THE WORD USED IS, SHALL, THEN IT I S OBLIGATORY UPON THE PERSON TO PAY THE SAID FEES. 13. REFERRING TO THE DECISION OF HON'BLE BOMBAY HIGH C OURT IN RASHMIKANT KUNDALIA'S CASE ( SUPRA ) WHEREIN THE CONSTITUTIONAL VALIDITY WAS CHALLENGE D, THE LEARNED DR REFERRED TO PARAS 13 TO 15 AND 18 OF THE SAID JUDGMENT AND POINTED OUT THAT THE RIGHT TO APPEAL WAS THE CREATI ON OF STATUTE AND THE HON'BLE HIGH COURT WAS DEALING WITH CONSTITUTIONAL VALIDITY BUT ALSO CONSIDERED THE PURPOSE FOR WHICH THE SAID SECTION WAS INTRODUCED. REFERRING TO SECTION 200A(1)(C) OF THE ACT, HE STATED THAT THOUGH THE WO RD USED IS FEES, IF ANY, BUT THAT MEANS WHERE THERE IS AN ERROR OR WHERE NO FEES HAS BEEN PAID, THEN ALTHOUGH THE AMENDMENT WAS W.E.F. 01.06.2015, BUT T HE AMENDMENT WAS PROCEDURAL IN NATURE. HE STRESSED THAT ONCE CHARGIN G SECTION IS THERE, WHERE THE ASSESSEE HAS BEEN ASKED TO PAY THE FEES, THEN O NLY THING IS THAT THE PROVISIONS OF SECTION 200A OF THE ACT WERE ADDED IN 2010, PROVISIONS OF SECTION 234E OF THE ACT WERE ADDED IN 2012, THEN IF BY ERROR, IT WAS NOT THERE, THEN BY WAY OF INSERTION OF CLAUSE (C) TO SECTION 2 00A(1) OF THE ACT, THE ASSESSING OFFICER IS EMPOWERED TO CHARGE. HE FURTHE R RELIED ON CHENNAI BENCH OF TRIBUNAL, WHEREIN IT IS PROVIDED THAT THE ASSESSING OFFICER CAN CHARGE FEES UNDER SECTION 234E OF THE ACT. HE FURTH ER CONTENDED THAT BY WAY OF AN AMENDMENT IN 2015, THE ACT HAS NOT PROVIDED A NY NEW LEVY; THE PROVISIONS OF SECTION 234E OF THE ACT WERE ALREADY THERE AND AMENDMENT IS ONLY CLARIFICATORY. SECTION 234E OF THE ACT WAS CHA RGING SECTION W.E.F. 01.04.2012 AND IN CASE OF VIOLATION OF PROVISIONS O F THE ACT, FEES WAS TO BE LEVIED. REFERRING TO THE RELIANCE PLACED UPON BY TH E LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON VATIKA TOWNSHIP (P.) LTD'S. CASE ( SUPRA ), HE POINTED OUT THAT THE ISSUE BEFORE THE HON'BLE SU PREME COURT WAS CHARGING OF SURCHARGE WHICH WAS NEW LEVY AND IT WAS HELD TO BE PROSPECTIVE. HE FURTHER STATED THAT IF THERE IS AN OBLIGATION BY WA Y OF NEW STATUTE, THEN SUCH AMENDMENT IS PROSPECTIVE. IT WAS FURTHER POINTED OU T BY HIM THAT BEFORE THE HON'BLE DELHI HIGH COURT IN CIT V. NARESH KUMAR [2013] 39 TAXMANN.COM 182/[2014] 221 TAXMAN 59/362 ITR 256 THE AMENDMENT BY WAY OF FINANCE ACT, 2010 IN SECTION 40(A)(IA) OF THE ACT WAS THE I SSUE, WHICH WAS HELD TO BE CHARIFICATORY AND HENCE RETROSPECTIVE IN NATURE. HE FURTHER PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN GOVINDDAS V. ITO [1976] 103 ITR 123. 14. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSE SSEE IN REJOINDER POINTED OUT THAT MEMO EXPLAINING THE FINANCE BILL C LEARLY SAYS THAT THE AMENDMENT WAS W.E.F. 01.06.2015 AND IT WAS PROPOSED TO AMEND THE PROVISIONS OF SECTION 200A OF THE ACT. HE FURTHER S TATED THAT UNDER THE PROVISIONS OF SECTION 45 OF THE ACT, WHERE THE COST OF ACQUISITION WAS NIL , NO ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 11 CAPITAL GAINS WAS LEVIABLE BUT AFTER THE AMENDMENT, IT IS SO PROVIDED THAT CAPITAL GAINS WOULD BE CHARGEABLE IN SOME CASES WHE RE THE COST OF ACQUISITION WAS NIL AND HENCE, IT IS THE STATUTE WHICH EMPOWERS THE AU THORITIES TO LEVY FEES, CHARGES OR TAXES. IN THE ABSENCE OF SUCH POWE R, THERE IS NO MERIT IN LEVY OF FEES UNDER SECTION 234E OF THE ACT. 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E 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 RE FERENCE 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, THE STATUTE LAYS DOWN THE DUTY OF THE PAYER OF CERTAIN AMOUNTS TO DE DUCT TAX AT SOURCE UNDER SECTIONS 192 TO 194LD, 195 TO 196D OF THE ACT. UNDE R SECTION 198 OF THE ACT, IT IS PROVIDED THAT THE TAX DEDUCTED AT SOURCE SHALL FOR THE PURPOSE OF COMPUTING THE INCOME OF ASSESSEE BE DEEMED TO BE IN COME RECEIVED. UNDER SECTION 199 OF THE ACT, IT IS FURTHER PROVIDED THAT ANY DEDUCTION MADE IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS PAYMENT OF TAX ON BE HALF OF THE PERSON FROM WHOSE INCOME THE DEDUCTION WAS MADE. THE SUM REFERR ED 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. 16. SECTION 200 OF THE ACT LAYS DOWN THE DUTY OF THE PE RSON DEDUCTING TAX, WHICH READS AS UNDER: '200. (1) ANY PERSON DEDUCTING ANY SUM IN ACCORDANC E WITH 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 TH E 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 CENT RAL 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 WIT HIN 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 CRE DIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME, PREPARE SUCH STATEMENTS FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 12 PRESCRIBED INCOME-TAX AUTHORITY OR THE PERSON AUTHO RISED BY SUCH AUTHORITY SUCH STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MA NNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRE SCRIBED: 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.' 17. UNDER SECTION 200(1) OF THE ACT, IT IS PROVIDED TH AT 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 CRE DIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. UNDER SECTION 2 00(2) OF THE ACT, ANY PERSON BEING AN EMPLOYER, AS REFERRED TO IN SUB-SEC TION (1A) OF SECTION 192 OF THE ACT SHALL PAY, WITHIN THE PRESCRIBED TIME, THE TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. UNDER S UB-SECTION (2A) OF THE ACT, IT IS PROVIDED THAT WHERE THE SUM HAS BEEN DED UCTED IN ACCORDANCE WITH FOREGOING PROVISIONS OF THE CHAPTER, BY THE OFFICE OF THE GOVERNMENT, THEN DUTY IS UPON THE TREASURY OFFICER OR THE DRAWING & DISBURSING OFFICER OR ANY OTHER PERSON, TO DELIVER OR CAUSE TO BE DELIVER ED TO THE PRESCRIBED INCOME TAX AUTHORITIES, OR TO THE PERSON AUTHORIZED BY SUC H AUTHORITY, STATEMENT IN SUCH FORM, VERIFIED IN SUCH MANNER, SETTING FORTH S UCH PARTICULARS WITHIN SUCH TIME AS MAY BE PRESCRIBED. UNDER SECTION 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 THE ACT. THE ONUS IS UPON SUCH PERSON THAT HE SHALL AFT ER PAYING THE TAX TO THE CREDIT OF CENTRAL GOVERNMENT WITHIN PRESCRIBED TIME , PREPARE SUCH STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITY OR ANY PERSON S O AUTHORIZED, SUCH STATEMENT IN SUCH FORM AND 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 ACCORDANCE WITH VARIOUS PROVISIONS UNDER THE CHAPTER AND ALSO UPON AN EMPLOYER WHO IS MAKING DED UCTION 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 AUTHORIT Y, IN SUCH FORM AND VERIFIED AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCR IBED. THE SAID STATEMENT IS TO BE DELIVERED WITHIN SUCH TIME AS MAY BE PRESCRIB ED. 18. RULE 31A OF THE INCOME TAX RULES, 1962 (IN SHORT ' THE RULES') PROVIDES THAT EVERY PERSON WHO IS RESPONSIBLE FOR DEDUCTION OF TAX UNDER CHAPTER XVIIB SHALL IN ACCORDANCE WITH THE PROVISIONS OF SE CTION 200(3) OF THE ACT, DELIVER OR CAUSE TO BE DELIVERED, THE QUARTERLY STA TEMENTS TO THE DIRECTOR GENERAL OF INCOME TAX (SYSTEMS) OR THE PERSONS AUTH ORIZED BY THEM I.E. IN RESPECT OF DEDUCTIONS UNDER VARIOUS PROVISIONS OF T HE CHAPTER XVIIB. THE RULE FURTHER PROVIDES THAT THE STATEMENTS REFERRED TO IN SUB-RULE (1) ARE TO BE DELIVERED QUARTERLY AND THE STIPULATED PERIOD OF DU E DATE OF FILING THE SAID STATEMENT IN RESPECT OF DEDUCTOR BEING AN OFFICE OF THE GOVERNMENT AND THE DEDUCTOR BEING OTHER THAN GOVERNMENT, ARE PROVIDED. THE SUB-RULE (3) OF ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 13 RULE 31A OF THE RULES FURTHER PROVIDES THAT THE STA TEMENT REFERRED TO IN SUB- RULE (1) MAY BE FURNISHED IN ANY OF THE FOLLOWING M ANNERS I.E. BY WAY OF FURNISHING THE STATEMENT IN PAPER FORM OR FURNISHIN G THE STATEMENT ELECTRONICALLY UNDER DIGITAL SIGNATURE OR AFTER VER IFICATION. INITIALLY, SUCH STATEMENT HAD TO BE FURNISHED IN PAPER FORM AND LAT ER BY WAY OF AMENDMENT, THE PROCEDURE FOR FURNISHING THE STATEMENT ELECTRON ICALLY 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 FI NANCE (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 OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAF TER REFERRED 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 COM PUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: ( I ) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR ( II ) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMATION I N THE STATEMENT; ( B ) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASI S 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 200 AND SECTI ON 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; ( D ) AN INTIMATION SHALL BE PREPARED OR GENERATED AND SE NT 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 PURSUAN CE OF T HE 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 ENTR Y OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; ( II ) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOURCE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 14 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 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.' 19. SECTION 200A OF THE ACT LAYS DOWN THE MANNER IN WH ICH 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 B E COMPUTED AND INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF SUCH SUMS DE DUCTIBLE AS COMPUTED IN THE STATEMENTS AS PER CLAUSE (A) AND (B) UNDER SECT ION 200A(1) OF THE ACT. CLAUSES (C) TO (F) REPRODUCED ABOVE WERE SUBSTITUTE D FOR CLAUSES (C) TO (E) BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO T HE 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 COMPUTED UNDE R CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 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 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.' 20. AS PER NEWLY SUBSTITUTED CLAUSE (C) W.E.F. 01.06.2 015, THE FEES, IF ANY, IS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OF THE ACT. HOWEVER, UNDER THE EARLIER CLAUSE (C), THERE WAS NO SUCH PROVISION. 21. SECTION 234E(1) OF THE ACT PROVIDES THAT WHERE A P ERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED, A STATEMENT WITHIN TIME P RESCRIBED IN SECTION 200(3) OF THE ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT, HE SHALL BE LIABLE TO PAY, BY WAY OF FEES, SUM OF RS.200/- FOR EVERY DAY DURING WHICH THE 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 PR OVIDED THAT THE AMOUNT OF FEES REFERRED TO IN SUB-SECTION (1) SHALL NOT EXCEE D THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTABLE, AS THE CASE MAY BE. SUB- SECTION (3) FURTHER LAYS DOWN THAT THE AMOUNT OF FEES REFERRED TO IN SUB-SEC TION (1) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STAT EMENT IN ACCORDANCE WITH SUB-SECTION 200(3) OF THE ACT OR THE PROVISO TO SEC TION 206C(3) OF THE ACT. THE PROVISIONS OF SAID SECTION HAVE BEEN MADE APPLI CABLE TO A STATEMENT TO BE DELIVERED OR CAUSE TO BE DELIVERED ON OR AFTER THE FIRST DAY OF JULY, 2012. 22. READING THE ABOVESAID PROVISIONS OF THE ACT, IT TR ANSPIRES 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 20 0 OF THE ACT TO PREPARE A STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER WHICH IS PRESCRIBED UNDER THE ACT IN WHICH THE PARTICULARS OF TAX DEDUCTION A T SOURCE ARE TO BE PROVIDED AND THE SAID STATEMENT IS TO BE DELIVERED OR CAUSE TO BE DELIVERED WITHIN SUCH ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 15 TIME AS MAY BE PRESCRIBED. RULE 31A OF THE RULES PR OVIDED THE TIME LIMIT FOR THE FURNISHING OF STATEMENT FOR TAX DEDUCTION AT SO URCE ON QUARTERLY BASIS. SECTION 234E OF THE ACT LEVIES FEES FOR DEFAULT IN FURNISHING THE STATEMENTS OF TAX DEDUCTED AT SOURCE. SUCH FEES IS TO BE PAID BEF ORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SECTION 200(3) OF THE ACT OR PROVISO TO SECTION 206C(3) OF THE ACT. IN OTHER WOR DS, IN CASE THE ASSESSEE HAS DEFAULTED IN NOT DELIVERING THE STATEMENT OR CA USING TO DELIVER THE STATEMENT WITHIN TIME PRESCRIBED, THEN HE IS LIABLE TO PAY THE FEES WHICH IS SO PRESCRIBED UNDER THE ACT AND SUCH FEES SHALL NOT EX CEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTABLE AT SOURCE BUT THE SAME HA S TO BE PAID ALONG WITH STATEMENT WHICH IS TO BE DELIVERED UNDER THE PROVIS IONS OF SECTION 200(3) OF THE ACT. THOUGH THE STATEMENT OF TAX DEDUCTED AT SO URCE HAS TO BE FURNISHED BY THE DEDUCTOR, NO DOUBT, UNDER SECTION 200 OF THE ACT, BUT THE SAME HAS TO BE PROCESSED BY THE PRESCRIBED AUTHORITY AS PER PRO VISIONS OF SECTION 200A OF THE ACT. IN CASE THERE IS ANY VARIATION IN THE TAX, SUM DEDUCTIBLE UNDER THE CHAPTER AND/OR THEIR PAYMENT, THE ASSESSING OFFICER IS EMPOWERED TO MAKE ADJUSTMENTS IN THIS REGARD AND ALSO REJECT INCORREC T CLAIM MADE BY THE DEDUCTOR WHICH IS APPARENT FROM THE INFORMATION IN THE STATEMENT FILED BY THE DEDUCTOR. FURTHER, THE INCOME-TAX AUTHORITY IS AUTH ORIZED 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, W HICH IS TO BE PAID TO THE ACCOUNT OF TREASURY 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. FURTHE R, IN ADDITION TO BOTH THESE AMOUNTS, CLAUSE (C) TO SECTION 200A OF THE ACT PROV IDES FEES TO BE LEVIED WHICH SHALL BE COMPUTED IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 234E OF THE ACT. THE SAID PROVISION TO CHARGE FEES BY TH E PRESCRIBED AUTHORITY HAS BEEN SUBSTITUTED FOR EARLIER PROVISIONS BY THE FINA NCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO THE SAID SUBSTITUTION THOUGH T HE PROVISIONS OF SECTION 234E OF THE ACT FOR PAYMENT OF FEES FOR DEFAULT IN FURNISHING THE STATEMENT 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. 23. 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 PR OCESSING THE INTIMATION UNDER SECTION 200A OF THE ACT COULD CHARGE LATE FEE UNDER THE PROVISIONS OF SECTION 234E OF THE ACT. THE ASSESSEE CLAIMS THAT T HE ASSESSING OFFICER AT BEST COULD CHARGE THE DIFFERENCE IN TAX DEDUCTED AN D NOT PAID IN TREASURY FROM THE DEDUCTOR AND/OR ANY INTEREST PAYABLE ON SU CH DEDUCTION OF TAX AT SOURCE. HOWEVER, TILL SUBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015, THE ASS ESSING OFFICER WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. THE CASE OF REVENUE ON THE OTHER HAND, WAS THAT IT WAS THE DUTY OF DEDUCTOR WHILE FURNISHING THE STATEMENT UNDER SECTION 200(3) OF TH E ACT TO DEPOSIT THE FEES REFERRED TO IN SECTION 234E(1) OF THE ACT. THE LEAR NED 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 SECTION 200(3) OF THE ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 16 ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT. H OWEVER, VARIOUS REGULATIONS AND THE STATUTORY PROVISIONS IN THIS RE GARD POINT OUT THAT UNDOUBTEDLY, THE RESPONSIBILITY OF THE DEDUCTOR WAS TO DEPOSIT THE TAX DEDUCTED AT SOURCE IN TIME AND IF NOT SO, THEN WITH INTEREST AND CONSEQUENTLY, WHERE THE TAX WAS NOT PAID IN TIME AND INTEREST WAS NOT PAID IN TIME AND THEN, WHERE THE STATEMENT OF TAX DEDUCTED AT SOURCE COULD NOT BE FILED BEFORE THE PRESCRIBED AUTHORITY WITHIN STIPULATED TIME, THE AS SESSEE WAS LIABLE TO LEVY OF FEES UNDER SECTION 234E OF THE ACT. HOWEVER, IN CAS E ANY DEFAULT OCCURS DUE TO THE NON-PAYMENT OF FEES BY THE ASSESSEE IN THIS REGARD, THEN THE PROVISIONS WHICH HAS TO BE CONSIDERED IS SECTION 200A(1)(C) OF THE ACT. THE POWER TO CHARGE/COLLECT FEES AS PER PROVISIONS OF SECTION 23 4E 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 FINANC E 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 STATUT E IS TO APPLY THE SAID PROVISIONS FROM THE SAID DATE. 24. IN RESPECT OF THE ISSUE RAISED BEFORE US, IT IS CL EAR 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 SUBSTITUTION MADE BY FINANCE (NO. 2) ACT, 2015 W.E.F. 01.06.2015. ONCE T HE POWER HAS BEEN GIVEN, UNDER WHICH ANY LEVY HAS TO BE IMPOSED UPON TAXPAYE R, THEN SUCH POWER COMES INTO EFFECT FROM THE DATE OF SUBSTITUTION AND CANNOT BE APPLIED RETROSPECTIVELY. THE SAID EXERCISE OF POWER HAS BEE N PROVIDED BY THE STATUTE TO BE FROM 01.06.2015 AND HENCE, IS TO BE APPLIED P ROSPECTIVELY. THERE IS NO MERIT IN THE CLAIM OF REVENUE THAT EVEN WITHOUT INS ERTION OF CLAUSE (C) UNDER SECTION 200A(1) OF THE ACT, IT WAS INCUMBENT UPON T HE ASSESSEE TO PAY FEES, IN CASE THERE IS DEFAULT IN FURNISHING THE STATEMEN T OF TAX DEDUCTED AT SOURCE. ADMITTEDLY, THE ONUS WAS UPON THE ASSESSEE TO PREPA RE STATEMENTS AND DELIVER THE SAME WITHIN PRESCRIBED TIME BEFORE THE PRESCRIB ED AUTHORITY, BUT THE POWER TO COLLECT THE FEES BY THE PRESCRIBED AUTHORI TY VESTED IN SUCH AUTHORITY ONLY BY WAY OF SUBSTITUTION OF CLAUSE (C) TO SECTIO N 200A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO SAID SUBSTITUTION 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 VE STED IN IT AND BEFORE VESTING OF SUCH POWER, NO ORDER CAN BE PASSED BY TH E PRESCRIBED AUTHORITY IN CHARGING OF SUCH FEES UNDER SECTION 234E OF THE ACT , WHILE EXERCISING JURISDICTION UNDER SECTION 200A OF THE ACT. THUS, I N THE ABSENCE OF ENABLING PROVISIONS, UNDER WHICH THE PRESCRIBED AUTHORITY IS EMPOWERED TO CHARGE THE FEES, THE ASSESSING OFFICER WHILE PROCESSING THE RE TURNS FILED BY THE DEDUCTOR IN RESPECT OF TAX DEDUCTED AT SOURCE CAN RAISE THE DEMAND ON ACCOUNT OF TAXES, IF ANY, NOT DEPOSITED AND 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 ABS ENCE OF ENABLING PROVISIONS, LEVY OF FEES COULD NOT BE EFFECTED IN T HE COURSE OF INTIMATION ISSUED UNDER SECTION 200A OF THE ACT PRIOR TO 01.06 .2015. ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 17 25. THE AMRITSAR BENCH OF TRIBUNAL IN SIBIA HEALTH CARE (P.) LTD. V. DY. CIT [2016] 65 TAXMANN.COM 105 HAD HELD THAT THE ADJUSTM ENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E OF THE ACT WAS INDE ED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A OF THE ACT. SUCH A LEVY COULD NOT BE EFFECTED IN THE COURSE OF INTIMAT ION 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 SU CH LEVY COULD BE EFFECTED. THE SAID PROPOSITION HAS BEEN APPLIED IN VARIOUS DE CISIONS OF DIFFERENT BENCHES OF TRIBUNAL. REFERENCE WAS MADE TO THE DECI SIONS OF CHENNAI BENCH OF TRIBUNAL IN G. INDIRANI' CASE ( SUPRA ), AHMEDABAD BENCH OF TRIBUNAL IN GLOBE ECOLOGISTICS LTD. V. DY. CIT IN ITA NOS.2689- 2691/AHD/2015, ITA NO. 2692/AHD/2015, RELATING TO ASSESSMENT YEAR 2014 -15, ITA NO. 2693/AHD/2015, RELATING TO ASSESSMENT 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 TRIBUNAL I N KHANNA WATCHES LTD. V. DY. CIT IN ITA NOS.731 TO 735/CHD/2015, RELATING TO ASSESS MENT YEARS 2013-14 & 2014-15, ORDER DATED 29.10.2015. 26. WHILE DECIDING THE PRESENT BUNCH OF APPEALS, THE R EVENUE HAD PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HON'BLE BOMB AY HIGH COURT IN RASHMIKANT KUNDALIA' CASE ( SUPRA ) WHEREIN, THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT WAS CHALLENGED. THE HON'BLE HIGH COURT NOTED THE FACT THAT WHERE THE DEDUCTOR WAS REQUIRED TO FURNIS H PERIODICAL QUARTERLY STATEMENTS CONTAINING THE DETAILS OF DEDUCTION OF T AX MADE DURING THE QUARTER, BY THE PRESCRIBED DUE DATE AND THE DELAY IN FURNISH ING SUCH TDS RETURNS WOULD HAVE CASCADING EFFECT. IT WAS FURTHER OBSERVE D BY THE HON'BLE HIGH COURT THAT UNDER THE INCOME-TAX ACT, WHERE THERE IS AN OBLIGATION ON THE INCOME-TAX DEPARTMENT TO PROCESS THE INCOME-TAX RET URNS WITHIN SPECIFIED PERIOD FROM THE DATE OF FILING, THE RETURNS COULD N OT BE ACCURATELY PROCESSED OF SUCH PERSON ON WHOSE BEHALF TAX HAS BEEN DEDUCTE D I.E. DEDUCTEE, UNTIL INFORMATION OF SUCH DEDUCTIONS IS FURNISHED BY THE DEDUCTOR WITHIN THE PRESCRIBED TIME. SINCE THE SUBSTANTIAL NUMBER OF DE DUCTORS WERE NOT FILING THEIR TDS RETURNS/STATEMENTS WITHIN PRESCRIBED TIME FRAME, THEN IT LEAD TO AN ADDITIONAL WORK BURDEN UPON THE DEPARTMENT DUE TO T HE 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 ACT. THE HON'BLE HIGH COURT HELD THAT LOOKING AT THIS FR OM THIS PERSPECTIVE, SECTION 234E OF THE ACT WAS NOT PUNITIVE IN NATURE BUT A FEE WHICH WAS A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPART MENT HAD TO PROVIDE DUE TO THE LATE FILING OF TDS STATEMENTS. IT WAS FURTHER H ELD BY THE HON'BLE HIGH COURT THAT LATE FILING OF TDS RETURNS/STATEMENTS WA S REGULARIZED BY PAYMENT OF FEES AS SET OUT IN SECTION 234E OF THE ACT. THER EFORE, THE FINDINGS OF HON'BLE 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 ACT WERE HELD TO BE NOT ONEROUS ON THE GROUND THAT SECTION DOES NOT EMPOWER THE ASSESSING 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 ACT. THE HON'BLE HIGH COURT HELD THAT THE RIGHT TO APPEAL WA S NOT A MATTER OF RIGHT BUT WAS CREATURE OF STATUTE AND IF THE LEGISLATURE DEEM S FIT NOT TO PROVIDE REMEDY ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 18 OF APPEAL, SO BE IT. THE HON'BLE HIGH COURT FURTHER HELD THAT A PERSON CAN ALWAYS APPROACH THE COURT IN EXTRAORDINARY EQUITABL E JURISDICTION UNDER ARTICLE 226/227 OF THE CONSTITUTION AS THE CASE MAY BE. THE HON'BLE HIGH COURT THEREFORE, OBSERVED THAT SIMPLY BECAUSE NO RE MEDY 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 VALIDITY OF PROVISIONS OF SECTION 234E OF THE ACT HAS ALSO BEEN UPHELD BY THE HON'BLE RAJASTHAN HIGH COUR T IN DUNDLOD SHIKSHAN SANSTHAN' CASE ( SUPRA ). 27. IN VIEW OF THE ABOVESAID RATIO LAID DOWN BY THE HO N'BLE BOMBAY HIGH COURT, THE CASE OF THE LEARNED DR BEFORE US WAS THA T THERE IS NO MERIT IN THE PRESENT SET OF APPEALS FILED BY THE ASSESSEE AS THE HON'BLE 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 OUTSET. 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 ASSESSEE THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE FE ES UNDER SECTION 234E OF THE ACT BEFORE INSERTION OF CLAUSE (C) TO SECTION 2 00A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. THE LEARNED AU THORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE OTHER HAND, DREW OUR ATTENT ION TO THE MEMORANDUM TO THE FINANCE BILL, 2015 WHILE INTRODUCING THE SAID C LAUSE (C) TO SECTION 200A(1) OF THE ACT. THE FINANCE BILL TOOK NOTE OF T HE PROVISIONS OF CHAPTER XVIIB, UNDER WHICH THE PERSON DEDUCTING TAX I.E. DE DUCTOR WAS REQUIRED TO FILE QUARTERLY TAX DEDUCTION AT SOURCE STATEMENT CO NTAINING THE DETAILS OF DEDUCTION OF TAX MADE DURING THE QUARTER BY THE PRE SCRIBED DUE DATES. SIMILAR RESPONSIBILITY IS ON A PERSON REQUIRED TO COLLECT T AX OF CERTAIN SPECIFIED RECEIPTS UNDER SECTION 206C OF THE ACT. IN ORDER TO PROVIDE EFFECTIVE DETERRENCE AGAINST THE DELAY IN FURNISHING TDS/TCS STATEMENTS, THE FINANCE ACT, 2012 INSERTED SECTION 234E OF THE ACT TO PROVI DE FOR LEVY OF FEES ON LATE FURNISHING OF TDS/TCS STATEMENTS. THE MEMO FURTHER TOOK NOTE OF THE FACT THAT THE FINANCE (NO. 2) ACT, 2009 INSERTED SECTION 200A IN THE ACT, WHICH PROVIDED FOR FURNISHING OF TDS STATEMENTS FOR DETER MINING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR. IT FURTHER T OOK NOTE THAT HOWEVER, AS SECTION 234E OF THE ACT WAS INSERTED AFTER THE INSE RTION OF SECTION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DOES NOT PROVIDE FOR DETERMINATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS. IT WAS THUS, PROPOSED TO AMEND THE PROVISIONS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMP UTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCES SING OF TDS STATEMENTS UNDER SECTION 200A OF THE ACT. THE MEMO EXPLAINING THE FINANCE BILL, 2015 VERY CATEGORICALLY HELD THAT CURRENTLY THERE DOES N OT EXIST ANY PROVISION IN THE ACT TO ENABLE THE PROCESSING OF TCS RETURNS AND HEN CE, A PROPOSAL WAS MADE TO INSERT A PROVISION IN THIS REGARD AND ALSO THE P OST-PROVISION SHALL INCORPORATE THE MECHANISM FOR COMPUTATION OF FEES P AYABLE UNDER SECTION 234E OF THE ACT. THE FINANCE BILL FURTHER REFERS TO THE EXISTING PROVISIONS OF THE ACT I.E. AFTER PROCESSING OF TDS STATEMENT, INT IMATION IS GENERATED SPECIFYING THE AMOUNT PAYABLE OR REFUNDABLE. THIS I NTIMATION GENERATED AFTER PROCESSING OF TDS STATEMENT IS (I) SUBJECT TO RECTI FICATION UNDER SECTION 154 OF THE ACT; (II) APPEALABLE UNDER SECTION 246A OF T HE ACT; AND (III) DEEMED AS ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 19 NOTICE OF PAYMENT UNDER SECTION 156 OF THE ACT. THE FINANCE BILL FURTHER PROVIDED THAT INTIMATION GENERATED AFTER THE PROPOS ED PROCESSING OF TCS STATEMENT SHALL BE AT PAR WITH THE INTIMATION GENER ATED AFTER PROCESSING OF TDS STATEMENT AND ALSO PROVIDED THAT FAILURE TO PAY TAX SPECIFIED IN THE INTIMATION SHALL ATTRACT LEVY OF INTEREST AS PER PR OVISIONS OF SECTION 220(2) OF THE ACT. FURTHER, AMENDMENTS WERE ALSO MADE IN RESP ECT OF THE SCHEME OF PAYMENT OF TDS/TCS BY THE GOVERNMENT, DEDUCTOR/COLL ECTOR WHICH ARE NOT RELEVANT FOR DECIDING THE ISSUE IN THE PRESENT APPE AL AND HENCE, THE SAME ARE NOT BEING REFERRED TO. THE FINANCE BILL FURTHER PRO VIDED THAT THE AMENDMENT WOULD TAKE EFFECT FROM 01.06.2015. 28. THE PERUSAL OF MEMO EXPLAINING THE PROVISION RELAT ING TO INSERTION OF CLAUSE (C) TO SECTION 200A OF THE ACT CLARIFIES THE INTENTION OF LEGISLATURE IN INSERTING THE SAID PROVISION. THE PROVISIONS OF SEC TION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT, 2012, UNDER WHICH THE PROVISION WAS MADE FOR LEVY OF FEES FOR LATE FURNISHING TDS/TCS STATEMENTS . BEFORE INSERTION OF SECTION 234E OF THE ACT, THE FINANCE (NO. 2) ACT, 2 009 HAD INSERTED SECTION 200A IN THE ACT, UNDER THE SAID SECTION, MECHANISM WAS PROVIDED FOR PROCESSING OF TDS STATEMENTS FOR DETERMINING THE AM OUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR, UNDER WHICH THE PROVISI ON WAS ALSO MADE FOR CHARGING OF INTEREST. HOWEVER, SINCE THE PROVISIONS OF SECTION 234E OF THE ACT WERE NOT ON STATUTE WHEN THE FINANCE (NO. 2) AC T, 2009 WAS PASSED, NO PROVISION WAS MADE FOR DETERMINING THE FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING THE TDS STATEMENT S. SO, WHEN SECTION 234E OF THE ACT WAS INTRODUCED, IT PROVIDED THAT THE PER SON WAS RESPONSIBLE FOR FURNISHING THE TDS RETURNS/STATEMENTS WITHIN STIPUL ATED PERIOD AND IN DEFAULT, FEES WOULD BE CHARGED ON SUCH PERSON. THE SAID SECT ION ITSELF PROVIDED THAT FEES SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTED AT SOURCE OR COLLECTED AT SOURCE. IT WAS FURTHER PROVIDED THAT THE PERSON RES PONSIBLE 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 ASSESSING OFFICER TO CHARGE/LEVY THE FEE UNDER SECTION 234E OF THE ACT W HILE PROCESSING THE TDS RETURNS/STATEMENTS FILED BY A PERSON DID NOT EXIST WHEN SECTION 234E OF THE ACT WAS INSERTED BY THE FINANCE ACT, 2012. THE POWE R TO CHARGE FEES UNDER THE PROVISIONS OF SECTION 234E OF THE ACT WHILE PRO CESSING 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 FIN ANCE ACT, 2015 W.E.F. 01.06.2015. ACCORDINGLY, WE HOLD THAT WHERE THE ASS ESSING OFFICER HAS PROCESSED THE TDS STATEMENTS FILED BY THE DEDUCTOR, WHICH ADMITTEDLY, WERE FILED BELATEDLY BUT BEFORE INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01.06.2015, THEN IN SUCH CASES, THE ASSESSIN G OFFICER IS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RETURNS FILED BY THE DEDUCTOR. 29. THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA' CASE ( SUPRA ) HAS UPHELD THE CONSTITUTIONAL VALIDITY OF SAID SECT ION 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 ASSESSIN G OFFICER 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 HON'BLE BOMBAY ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 20 HIGH COURT IN RASHMIKANT KUNDALIA' CASE ( 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 OFFI CER HAD ISSUED THE INTIMATION UNDER SECTION 200A OF THE ACT PRIOR TO 0 1.06.2015. 30. ANOTHER ASPECT OF THE ISSUE IS WHETHER THE AMENDME NT 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 P ROSPECTIVE IN NATURE AND IS NOT APPLICABLE TO THE PENDING ASSESSMENTS. UNDOUBTE DLY, THE PROVISIONS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANC E ACT, 2012, UNDER WHICH THE LIABILITY WAS IMPOSED UPON THE DEDUCTOR IN SUCH CASES WHERE TDS STATEMENTS/RETURNS WERE FILED BELATEDLY TO PAY THE FEES AS PER SAID SECTION. HOWEVER, 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 SECTION 234E OF THE ACT, IT IS INCUMBENT UPON THE LEGISLATURE TO PROVIDE MECHANISM FOR THE ASSESSING OFFICER TO CHAR GE AND COLLECT SUCH FEES. IN THE ABSENCE OF ENABLING PROVISIONS, THE ASSESSIN G OFFICER WHILE PROCESSING THE TDS STATEMENTS, EVEN IF THE SAID STATEMENTS ARE BELATED, IS NOT EMPOWERED TO CHARGE THE FEES UNDER SECTION 234E OF THE ACT. T HE AMENDMENT WAS BROUGHT IN BY THE FINANCE ACT, 2015 W.E.F. 01.06.20 15 AND SUCH AN AMENDMENT WHERE EMPOWERMENT IS GIVEN TO THE ASSESSI NG OFFICER TO LEVY OR CHARGE THE FEES CANNOT BE SAID TO BE CLARIFICATORY IN NATURE AND HENCE, APPLICABLE FOR PENDING ASSESSMENTS. 31. THE HON'BLE SUPREME COURT IN VATIKA TOWNSHIP (P.) LTD'S. CASE ( 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 OPERATION. 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 REFERS TO THE CURRENT PROVISIONS OF SUB-SECTION (3) TO SEC TION 200 OF THE ACT, UNDER WHICH THE DEDUCTOR IS TO FURNISH TDS STATEMENTS. HO WEVER, AS SECTION 234E OF THE ACT WAS INSERTED AFTER INSERTION OF SECTION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DID NOT PROVI DE FOR DETERMINATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE T IME OF PROCESSING OF TDS STATEMENTS. IN THIS REGARD, IT WAS THUS, PROPOSED T O AMEND THE PROVISIONS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMPUTA TION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCES SING 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 ACT IN THE INTIMATION ISSUED AFTER INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01.06.2015. THE LEGISLATURE ITSELF RECOGNIZE D THAT UNDER THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT I.E. PRIOR TO 01.06.2015, THE ASSESSING OFFICER AT THE TIME OF PROCESSING THE TDS STATEMENT S DID NOT HAVE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT AND IN OR DER TO COVER UP THAT, THE AMENDMENT WAS MADE BY WAY OF INSERTION OF CLAUSE (C ) TO SECTION 200A OF THE ACT. IN SUCH SCENARIO, IT CANNOT BE SAID THAT I NSERTION MADE BY SECTION 200A(1)(C) OF THE ACT IS RETROSPECTIVE IN NATURE, W HERE THE LEGISLATURE WAS AWARE THAT THE FEES COULD BE CHARGED UNDER SECTION 234E OF THE ACT AS PER ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 21 FINANCE ACT, 2012 AND ALSO THE PROVISIONS OF SECTIO N 200A OF THE ACT WERE INSERTED BY FINANCE (NO. 2) ACT, 2009, UNDER WHICH 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 AN D CANNOT BE APPLIED TO PROCESSING OF TDS RETURNS/STATEMENTS PRIOR TO 01.06 .2015. 32. WE FURTHER FIND THAT IN RECENT JUDGMENT DATED 26.0 8.2016, THE HON'BLE KARNATAKA HIGH COURT IN WRIT APPEAL NOS. 2663-2674/ 2015(T-IT) IN FATHERAJ SINGHVI V. UNION OF INDIA [2016] 73 TAXMANN.COM 252 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 200A OF THE ACT ENABLING THE ASSESSING O FFICER TO MAKE ADJUSTMENTS WHILE LEVYING FEES UNDER SECTION 234E O F THE ACT WAS APPLICABLE W.E.F. 01.06.2015 AND HAS HELD THAT IT HAS PROSPECT IVE EFFECT. ACCORDINGLY, THE HON'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 IS SUE ON CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. WE HAVE ALREADY REFERRED TO THE DECISION OF HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA V. UNION OF INDIA'S CASE ( SUPRA ) IN THIS REGARD, WHEREIN THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT HAS BEEN UPHELD. 33. ACCORDINGLY, WE HOLD THAT THE AMENDMENT TO SECTION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE AND IN VIEW THEREOF, THE AS SESSING OFFICER WHILE PROCESSING THE TDS STATEMENTS/RETURNS IN THE PRESEN T SET OF APPEALS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CH ARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, THE INTIMATION ISSUED BY TH E ASSESSING OFFICER UNDER SECTION 200A OF THE ACT IN ALL THESE APPEALS DOES N OT STAND AND THE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 23 4E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE INTIMATION ISSUED BY T HE ASSESSING OFFICER WAS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTI ON 200A OF THE ACT AND SUCH ADJUSTMENT COULD NOT STAND IN THE EYE OF LAW. 34. BEFORE PARTING WE MAY REFER TO RELIANCE PLACED UPO N BY THE LEARNED DR ON THE RATIO LAID DOWN BY CHENNAI BENCH OF TRIBUNAL IN G. INDIRANI'S CASE ( 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 F ILING THE TDS STATEMENTS UNDER SECTION 200(3) OF THE ACT; THE TRIBUNAL HELD 'YES' THAT THE ASSESSING AUTHORITY HAD SUCH POWER AND AFTER 01.06.2015, THE ASSESSING OFFICER WAS WITHIN HIS LIMIT TO LEVY FEES UNDER SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT. IN VIEW OF THE PRESENT SET OF FACTS, WHERE THE ASSESSING OFFICER H AD CHARGED FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEM ENTS UNDER SECTION 200A OF THE ACT BEFORE 01.06.2015, THERE IS NO MERIT IN THE RELIANCE PLACED UPON BY THE LEARNED DR ON THE SAID PROPOSITION LAID DOWN BY THE CHENNAI BENCH OF TRIBUNAL AND WE DISMISS THE SAME. ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 22 35. ANOTHER RELIANCE PLACED UPON BY THE LEARNED DR WAS IN RESPECT OF AMENDMENT BEING RETROSPECTIVE OR PROSPECTIVE AND RE LIANCE WAS PLACED ON THE RATIO LAID DOWN BY HON'BLE DELHI HIGH COURT IN NARESH KUMAR'S CASE ( SUPRA ). HOWEVER, IN VIEW OF OUR DECISION IN THE PARAS HE REINABOVE, WHERE POWER IS BEING ENSHRINED UPON THE ASSESSING OFFICER TO LEVY OR CHARGE WHILE PROCESSING THE TDS RETURNS W.E.F. 01.06.2015, SUCH PROVISION CANNOT HAVE RETROSPECTIVE EFFECT AS IT WOULD BE DETRIMENTAL TO THE CASE OF TAXPAYER. THE HON'BLE DELHI HIGH COURT WAS CONSIDERING THE APPLIC ATION OF AMENDMENT TO SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 20 10, UNDER WHICH CERTAIN RELAXATIONS WERE GIVEN TO THE APPLICATION OF SAID S ECTION AND IT WAS HELD THAT THE SAME APPLIES RETROSPECTIVELY TO EARLIER YEARS. HOWEVER, IN THE PRESENT SET OF APPEALS, THE ISSUE IS AGAINST THE PROVISION UNDE R WHICH A NEW ENABLING POWER IS BEING GIVEN TO CHARGE FEES UNDER SECTION 2 34E OF THE ACT WHILE PROCESSING TDS RETURNS/STATEMENTS AND SUCH POWER IS TO BE APPLIED PROSPECTIVELY. IN ANY CASE, THE PARLIAMENT ITSELF H AS RECOGNIZED ITS OPERATION TO BE PROSPECTIVE IN NATURE WHILE INTRODUCING CLAUS E (C) TO SECTION 200A(1) OF THE ACT AND HENCE, CANNOT BE APPLIED RETROSPECTIVEL Y. SIMILARLY, RELIANCE PLACED UPON BY THE LEARNED DR ON THE RATIO LAID DOW N BY THE HON'BLE SUPREME COURT IN GOVINDDAS'S CASE ( SUPRA ) IS MISPLACED BECAUSE OF THE DISTINGUISHABLE FACTS AND ISSUES. 36. NOW, COMING TO THE CONNECTED ISSUE RAISED BY THE L EARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BY WAY OF GROUND IN SOME OF THE APPEALS APPEAL NO. 1 THAT WHETHER ANY APPEAL IS MAINTAINABL E AGAINST THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT AND/OR ORDER P ASSED UNDER SECTION 154 R.W.S. 200A OF THE ACT BY ASSESSING OFFICER IN CHAR GING THE FEES UNDER SECTION 234E OF THE ACT. BOTH THE LEARNED AUTHORIZE D REPRESENTATIVES HAVE RAISED VARIED ARGUMENTS IN RESPECT OF SAID ISSUE AN D THE LEARNED DR HAS REFERRED TO THE ORDER OF CIT(A), WHO HAD HELD THAT NO APPEAL IS MAINTAINABLE AGAINST THE ORDER OF ASSESSING OFFICER PASSED WHILE PROCESSING THE TDS RETURNS/STATEMENTS AND CHARGING OF FEES UNDER SECTI ON 234E OF THE ACT. WITHOUT GOING INTO VARIOUS ASPECTS OF THE ISSUE, WE MAKE REFERENCE TO THE MEMORANDUM EXPLAINING THE FINANCE BILL, 2015, UNDER WHICH THE HEADING WAS RATIONALIZATION OF PROVISIONS RELATING TO TAX D EDUCTION AT SOURCE (TDS) AND TAX COLLECTION AT SOURCE (TCS). THE SAID MEMORA NDUM CATEGORICALLY RECOGNIZED THAT UNDER THE EXISTING PROVISIONS OF TH E ACT, AFTER PROCESSING OF TDS STATEMENTS, AN INTIMATION IS GENERATED SPECIFYI NG THE AMOUNT PAYABLE OR REFUNDABLE. IT WAS FURTHER NOTED THAT THIS INTIMATI ON GENERATED AFTER PROCESSING TDS STATEMENT IS (I) SUBJECT TO RECTIFIC ATION UNDER SECTION 154 OF THE ACT; (II) APPEALABLE UNDER SECTION 246A OF THE ACT; AND (III) DEEMED AS NOTICE OF PAYMENT UNDER SECTION 156 OF THE ACT. UND ER THE AMENDMENT, SIMILAR POSITION WAS GIVEN TO THE PROCESSING OF TCS STATEMENTS. IN OTHER WORDS, THE LEGISLATURE RECOGNIZES THAT A DEDUCTOR W HO HAS FILED HIS STATEMENT OF TAX DEDUCTED AT SOURCE, WHICH IN TURN, HAS BEEN PROCESSED BY THE ASSESSING OFFICER AND INTIMATION IS GENERATED UNDER WHICH, IF ANY AMOUNT IS FOUND TO BE PAYABLE, THEN SUCH INTIMATION GENERATED AFTER PROCE SSING OF TDS RETURNS IS SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE A CT AND/OR IS ALSO APPEALABLE UNDER SECTION 246A OF THE ACT, SINCE THE DEMAND ISS UED BY THE ASSESSING OFFICER IS DEEMED TO BE A NOTICE OF PAYMENT UNDER S ECTION 156 OF THE ACT. SINCE THE INTIMATION IN QUESTION ISSUED BY THE ASSE SSING OFFICER WAS ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 23 APPEALABLE ORDER UNDER SECTION 246A(1)(A) OF THE AC T, THEREFORE, THE CIT(A) SHOULD HAVE EXAMINED THE LEGALITY OF ADJUSTMENT MAD E UNDER INTIMATION ISSUED UNDER SECTION 200A OF THE ACT. THE CIT(A) HA S REJECTED THE PRESENT SET OF APPEALS ON THE SURMISE THAT FIRST OF ALL, NO APP EAL IS PROVIDED AGAINST THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT. FU RTHER, THE CIT(A) HAS ALSO DECIDED THE ISSUE ON MERITS AND THE ASSESSEE IS IN APPEAL BEFORE US ON BOTH THESE GROUNDS. VIS--VIS THE FIRST ISSUE OF MAINTAINABILITY OF APPEAL AGAIN ST THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT, WE HOLD THAT SUCH INTIMATION ISSUED BY THE ASSESSING OFFICER AFTER PROCESSING TH E TDS RETURNS IS APPEALABLE. THE DEMAND RAISED BY WAY OF CHARGING OF FEES UNDER SECTION 234E OF THE ACT IS UNDER SECTION 156 OF THE ACT AND ANY DEMAND RAISED UNDER SECTION 156 OF THE ACT IS APPEALABLE UNDER SECTION 246A(1)(A) AND (C) OF THE ACT. ACCORDINGLY, WE REVERSE THE FINDINGS OF CIT(A) IN THIS REGARD. WE FIND SUPPORT FROM THE SIMILAR PROPOSITION BEING LAID DOW N BY MUMBAI BENCH OF TRIBUNAL IN BUNCH OF CASES WITH LEAD ORDER IN KASH REALTORS (P.) LTD. V. ITO IN ITA NO. 4199/M/2015, RELATING TO ASSESSMENT YEA R 2013-14, CONSOLIDATED ORDER DATED 27.07.2016, WHICH HAD ALSO DECIDED THE ISSUE OF CHARGING OF FEES UNDER SECTION 234E OF THE ACT IN F AVOUR OF THE ASSESSEE FOLLOWING THE DECISIONS OF OTHER BENCHES OF TRIBUNA L. ONCE INTIMATION ISSUED UNDER SECTION 200A(1) OF THE ACT IS APPEALABLE ORDE R BEFORE THE CIT(A) UNDER SECTION 246A(1)(A) OF THE ACT, THEN SUCH APPEALABLE ORDER PASSED BY THE CIT(A) UNDER SECTION 250 OF THE ACT IS FURTHER APPE ALABLE BEFORE THE TRIBUNAL UNDER SECTION 253 OF THE ACT. HENCE, WE ADMIT THE P RESENT APPEALS FILED BY THE ASSESSEE EVEN ON THIS PRELIMINARY ISSUE. WE HAV E ALREADY ADJUDICATED THE ISSUE OF CHARGING FEES UNDER SECTION 234E OF THE AC T BY THE ASSESSING OFFICER WHILE PROCESSING RETURNS/STATEMENTS IN THE PARAS HE REINABOVE AND IN VIEW THEREOF, WE HOLD THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE THE FEES UNDER SECTION 234E OF THE ACT BY WAY OF INTIMA TION ISSUED UNDER SECTION 200A OF THE ACT IN RESPECT OF DEFAULTS BEFORE 01.06 .2015, WE ALLOW THE CLAIM OF ASSESSEE ON BOTH THE ASPECTS. THE GROUNDS OF APP EAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED. 37. IN THE RESULT, ALL THE APPEALS FILED BY DIFFERENT ASSESSEES FOR DIFFERENT QUARTERS RELATING TO DIFFERENT YEARS ARE ALLOWED. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, IMPUGNED ORDERS, ORDERS OF THE TRIBUNAL, MATERIAL F ACTS AVAILABLE ON RECORD ALONG WITH THE ARGUMENTS FROM B OTH SIDES, KEPT IN JUXTAPOSITION AND ANALYZED, WE FIND THAT BEFORE US, THE ASSESSEE HAS RAISED A QUESTION PRIOR TO 01/ 06/2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A FOR RAISING THE DEMAND IN RESPECT OF LEVY OF FEE U/S 234E OF TH E ACT. WE ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 24 FIND THAT THE COORDINATE BENCH OF PUNE IN THE CASE OF GAJANAN CONSTRUCTIONS (SUPRA) HAS MADE AN ELABORATE DISCUSSION ON THE ISSUE AND DECIDED IN FAVOUR OF TH E ASSESSEE. IT IS ALSO NOTED THAT WHILE COMING TO A P ARTICULAR CONCLUSION, THE PUNE BENCH OF THE TRIBUNAL DULY CON SIDERED THE DECISIONS RELIED UPON BY THE LD. CIT-DR SUCH AS FROM HONBLE BOMBAY HIGH COURT IN RASMIKANT KUNDALIA (IN PARA- 6), HONBLE KARNATAKA HIGH COURT IN LAXMI NIRMAN, BANGALORE (P.) LTD. AND ALSO THE DECISION OF HONB LE RAJASTHAN HIGH COURT IN DUNDLOD SHIKSHAN SANSTHAN V S UOI (SUPRA)(IN PARA-9 OF THE ORDER), IN ITS ORDER D ATED 23/09/2016 ALONG WITH THE DECISION FROM HONBLE APE X COURT IN THE CASE OF CIT VS VATIKA TOWNSHIP PVT. LT D. (2014) 367 ITR 466(SC) TO THE EFFECT OF GENERAL PRINCIPLE CONCERNING APPLICATION OF RETROSPECTIVELY OF THE AMENDMENT, WHEREIN, IT WAS HELD THAT A LEGISLATION IS PRESUMED NOT TO BE I NTENDED TO HAVE A RETROSPECTIVE OPERATION. IT IS ALSO NOTED T HAT THE BENCH FOLLOWED THE DECISION IN THE CASE OF FATHERAJ SINGHVI VS UOI(2016) 73 TAXMAN.COM 252 (KERALA)(PARA-32) AN D KASH REALTORS PVT. LTD. VS ITO (ITA NO.4199(MUM.) OF 201 5) DATED 27/07/2016(PARA-36). EVEN IF TWO VIEWS ARE ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 25 POSSIBLE/AVAILABLE, AS PER THE DECISION FROM HONBL E APEX COURT IN THE CASE OF VEGETABLE PRODUCTS (88 ITR 192 )(SC), THE VIEW, WHICH FAVORS THE ASSESSEE HAS TO BE FOLLOWED. THE ISSUE BEFORE THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA (SUPRA) WAS WITH RESPECT TO CONSTITUTION VALIDITY OF THE SECTION INTRODUCED BY FINANCE ACT, 2015 W.E.F. 01/06/2015 BUT WAS NOT ABREAST OF THE APPLICABILITY OF SECTION 234E OF THE ACT BY THE AO WHILE PROCESSING TDS STATEMENT. SO FAR AS, THE HONBLE KA RNATAKA HIGH COURT IS CONCERNED, IT WAS HELD THAT INTIMATI ON RAISING DEMAND PRIOR TO 01/06/2015, U/S 200A OF THE ACT, LE VYING FEE U/S 234E, IS NOT VALID. CONSIDERING THE AFORE SAID DECISION OF THE COORDINATE BENCH, WE HOLD THAT AMEN DMENT IN SECTION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE, THEREFORE, THE AO WHILE PROCESSING THE TDS STATEMENTS, RETURNS IN THE PRESENT SET OF APPEALS OF THE PERIOD PRIOR TO 01/06 /2015, WAS NOT EMPOWERED TO CHARGE FEE U/S 234E OF THE ACT, HE NCE, THE INTIMATION ISSUED BY THE ASSESSING OFFICER U/S 200A OF THE ACT, IN THE APPEALS BEFORE US, DOES NOT STAND, THER EFORE, THE DEMAND RAISED BY WAY OF CHARGING FEE U/S 234E OF TH E ACT IS NOT VALID, RESULTANTLY, THE SAME IS DELETED AS THE INTIMATION ITA NOS.4050 TO 4054/DEL./2016 SAMIKARAN LEARNING PVT. LTD. 26 ISSUED BY THE ASSESSING OFFICER IN THE PRESENT CASE , FOR THE PERIOD PRIOR TO 01/06/2015, IS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED U/S 200A OF THE ACT. THUS, THE APPEALS OF THE ASSESSEE ARE ALLOWED. FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF THE LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 09/11/2017. SD/- SD/- (N. K. SAINI) (JOGINDER SINGH) ' / ACCOUNTANT MEMBER # ' /JUDICIAL MEMBER DELHI; DATED : 09/11/2017 F{X~{T? P.S/. .. $#&' (' / COPY OF THE ORDER FORWARDED TO : 1. / / THE APPELLANT 2. 01/ / THE RESPONDENT. 3. 3 ( ) / THE CIT, NEW DELHI. 4. 3 / CIT(A)- , DELHI 5. 5 0 , , / DR, ITAT, DELHI 6. % / GUARD FILE. / BY ORDER, 15 0 //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, DELHI