Sukhmani Automobiles, Indore V. ITO-TDS-I, Indore

ITA 413/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2434 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 01-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; TDS; Set aside
• Section: 201(1); 234E; 200A; 192; 73; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.412 & 413/IND/2019 SUKHMANI AUTOMOBILES PAN:ABBFS2172F A.YS.: 2013-14 (Q-3) 2014-15(Q-1) VS. ITO, TDS,INDORE, APPELLANT S BY SHRI SUBHASH JAIN, CA RESPONDENT BY SHRI ASHISHPORWAL, SR. DR ITA NOS.424 & 425/IND/2019 DR. ARUNESH KUMAR MISHRA MEMORIAL EDUCATION SOCIETY, INDORE TAN:BPLD04330E A.YS.: 2013-14 (Q-4) 2014-15(Q-3) VS. ACIT (CENTRALIZED PROCESSING CELL-TDS), GHAZIABAD APPELLANT S BY SHRI S.S. DESHPANDE , C A RESPONDENT BY SHRI ASHISH PORWAL, SR. DR DATE OF HEARING: 17.03.2020 DATE OF PRONOUNCEMENT: 19.03.2020 ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 2 / O R D E R PER BENCH: THE ABOVE CAPTIONED APPEALS ARE AT THE INSTANCE OF RESPECTIVE ASSESSEES AND ARE DIRECTED AGAINST THE RESPEC TIVE ORDERSOF LD. COMMISSIONER OF INCOME TAX(APPEALS), ( IN SHORT CIT(A)). AS THE ISSUE RAISED IN ALL THESE APPE ALS ARE SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOS ED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. FROM PERUSAL OF THE GROUNDS WE FIND THAT ONLY ONE ISSUE NEEDS TO BE ADJUDICATED AS TO WHETHER THE REVENUE AUTHORITIES WERE JUSTIFIED IN LEVYING THE LATE FEES U /S 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DED UCTED AT SOURCE U/S 200A OF THE ACTBEFORE THE AMENDMENTWAS BROUGHT IN W.E.F. 01.06.2015 IN THE PROVISIONS OF S ECTION 200A OF THE ACT. 3. BRIEF FACTS COMMON IN ALL THESE APPEALS ARE THAT THE APPELLANT WAS REQUIRED TO FILE THE STATEMENT OF TAX DEDU CTED AT SOURCE FOR THE RESPECTIVE QUARTER BUT FAILED TO DO S O WITHIN THE DUE DATE PRESCRIBED IN THE LAW FOR FILING SUCH QUARTERLY TDS RETURNS. AS PER THE PROVISIONS OF SECTI ON ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 3 234E OF THE ACT, FEE FOR DEFAULT IN FURNISHING THE S TATEMENT IS LEVIABLE IF THE STATEMENT OF TDS ARE NOT DELIVERED WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 2 00 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C OF THE A CT. 4. THE REVENUE AUTHORITIES HAVE LEVIED THE LATE FEES F OR DEFAULT IN FURNISHING THE STATEMENT IN THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE PREPARED U/S 200A OF THE ACT. AGAINST THE LEVY OF LATE FEE U/S 234E IN THE STATEMENT PROCESSED U/S 200A OF THE ACT,APPEAL WAS PREFERRED BY THE ASSESSEE(S) FOR RESPECTIVE QUARTERS F OR THE RESPECTIVE ASSESSMENT YEARS BEFORE LD. CIT(A) PLEADIN G THAT BEFORE THE AMENDMENT WAS BROUGHT IN BY THE FINANCE ACT , 2015 W.E.F. 01.06.2015,THE REVENUE AUTHORITIES WERE NOT HAVING THE POWER TO LEVY THE LATE FEES U/S 234E OF TH E ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 5. HOWEVER, ASSESSEE FAILED TO SUCCEED IN ALL THESE 4 APPEALS BEFORE LD. CIT(A) AND NOW ARE IN APPEALS BEFORE T HE TRIBUNALRAISING THE ABOVE REFERRED COMMON ISSUE. 6. AT THE OUTSET, LD. COUNSELS FOR RESPECTIVE ASSESS EES SUBMITTED THAT THE COMMON ISSUE IS SQUARELY COVERED IN ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 4 FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISIONS OF THE COORDINATE BENCH: 1.MENTOR INDIA LIMITED VS. DCIT (ITANO.738/JP/2016 ORDER DATED 16.12.2016) 2. SUDERSHANGOYAL VS. DCIT (TDS) (ITANO.442/AGRA/2017 ORDER DATED 09.04.2018) 3. STATE BANK OF INDIA, GWALIOR VS. CIT(A) (ITANO.03/AG/2018 ORDER DATED 31.05.2018.) 4. STATE BANK OF INDIA, GENDACHOWK AND OTHERS VS. DCIT(TDS), (ITANOS. 727 & 737/IND/2017 AND OTHERS DATED 13.11.2018.) 5. M/S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATE D 20.12.2018 6. BHUPESHKUMAR J. SANGHVI&OTHERS IN ITANO.15/IND/2018 & OTHERS, ORDER DATED 22.01.2019. 7. INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITANO.11 7 OF 2019 AND OTHERS, ORDER DATED 20.02.2020. 7. LD. COUNSELS FURTHER SUBMITTED THAT IN THE ABOVE REFERRED DECISIONS OF THE TRIBUNAL, JUDGMENTS OF HON 'BLE HIGH COURT OF KARNATAKA IN THE CASE OF FATEHRAJSINGHVI VS . UOI (2016) 73 TAXMANN.COM 252 (KARN) (HC)FAVOURING THE ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 5 ASSESSEE AND THE JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF RAJESH KAURANI VS. UOI (2017) 83 TAXMANN.COM 137 (GUJ) HELD AGAINST THE ASSESSEE WERE DULY CONSIDERED AND THEREAFTER FOLLOWING THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF CIT VS. VATIKA TOWN SHIP PVT. LTD. (2014) 367 ITR 466(SC) AND THE JUDGMENT OF APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. (1973) 88 ITR 192(SC) HON'BLE TRIBUNAL TOOK A VIEW THAT IF TH ERE IS A CLEAVAGE OF OPINION BETWEEN DIFFERENT COURTS ON AN I SSUE THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWE D. ACCORDINGLY, IN THE ABOVE REFERRED DECISIONS OF THE TRIBUNAL THE VIEW FAVOURING THE ASSESSEE TAKEN BY THE HON'BLE H IGH COURT OF KARNATAKA IN THE CASE OF FATEHRAJSINGHVI(SUPRA) HAS BEEN FOLLOWED HOLDING THAT AMENDMENT BROUGHT IN W.E.F. 01.06.2015 IN SECTION 200A OF THE ACT IS PRO SPECTIVE IN NATURE, THEREFORE, NO COMPUTATION FOR FEE FOR DEMAN D OR INTIMATION U/S 234E OF THE ACT COULD HAVE BEEN MADE FO R TDS DEDUCTED IN RESPECTIVE OF STATEMENTS PREPARED/PROCURED PRIOR TO 01.06.2015AND PROCESSED U /S 200A OF THE ACT. 8. LD. COUNSELS FOR THE ASSESSEES FURTHER PLACED RELI ANCE ON THE DECISIONS OF I.T.A.T.,INDORE BENCH IN THE CASE O F STATE ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 6 BANK OF INDIA, GENDACHOWK AND OTHERS DATED 13.11.2018AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018, BHUPESH KUMAR J. SANGHVI& OTHERS IN ITANO.15/IND/2018 & OTHERS, ORDE R DATED 22.01.2019 AND INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDER DATED 20.02.2020WHEREIN THE SIMILAR ISSUE HAS BEEN ADJUDICATE D AND DECIDED IN FAVOUR OF THE ASSESSEE. 9. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) FAILE D TO CONTROVERT THE SUBMISSIONS MADE BY LD. COUNSELS F OR THE ASSESSEES. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US AND CAREFULLY GONE THROUGH VAR IOUS JUDGMENTS REFERRED AND RELIED BY THE LD. COUNSELS FO R ABOVE CAPTIONED ASSESSEES. THE COMMON ISSUE RAISED IN ALL THESE BUNCHES OF APPEALS IS THAT WHETHER THE LD. CIT( A) WAS JUSTIFIED IN CONFIRMING THE LEVY OF LATE FEE U/S 234 E OF THE ACT IN THE STATEMENT OF TAX DEDUCTED AT SOURCE PROCES SED U/S 200A OF THE ACT,EVEN WHEN THE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 PAVED THE WAY FOR ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 7 LEVYING THE FEE U/S 234E OF THE ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 11. FROM PERUSAL OF THE ABOVE ISSUE WE FIND THAT THE S AME HAS BEEN ADJUDICATED BY US IN THE CASE OF STATE BANK OF INDIA, GENDACHOWK AND OTHERS DATED 13.11.2018(SUPRA)AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018(SUPRA), BHUPESH KUMAR J. SANGHVI& OTHERS IN ITANO.15/IND/2018 & OTHERS, O RDER DATED 22.01.2019(SUPRA) AND INDORE SCHOOL OF SOCIAL WOR K & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDER DATED 20.02.2020AFTER EXAMINING SIMILAR FACTS AS WELL AS VARIOU S JUDICIAL PRONOUNCEMENTS. THE REVENUE AUTHORITIES FAILE D TO CONTROVERT THE CONTENTION OF LD. COUNSELS FOR THE AS SESSEES THAT THE COMMON ISSUE RAISED IN ALL THESE BUNCH OF 4 APPEALS ARESQUARELY COVERED IN FAVOUR OF ASSESSEESBY THE DECISIONS IN THE CASE OF STATE BANK OF INDIA, GENDACHOWK AND OTHERS DATED 13.11.2018(SUPRA) AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018(SUPRA), BHUPESH KUMAR J. SANGHVI& OTHERS IN ITANO.15/IND/2018 & OTHERS, ORDER DATED ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 8 22.01.2019(SUPRA) AND INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDER DATED 20.02.2020 AUTHORED BY US. RELEVANT PORTION OF THE DECISION GIVEN BY US IN THE CASE OF STATE BANK OF INDI A, GENDACHOWK AND OTHERS DATED 13.11.2018 (SUPRA) READS AS FOLLOWS: 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. THE COMMON ISSUE RAISED IN ALL THES E BUNCHES OF APPEALS IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE LEVY OF LATE FEE U/S 234E OF THE ACT IN THE STATEME NT OF TAX DEDUCTED AT SOURCE PROCESSED U/S 200A OF THE ACT, EVEN WHEN T HE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 P AVED THE WAY FOR LEVYING THE FEE U/S 234E OF THE ACT IN THE STATEMEN T PROCESSED U/S 200A OF THE ACT. 10. WE FIND THAT THE ABOVE ISSUE HAS CONSISTENTLY BEING ADJUDICATED BY THE COORDINATE BENCH OF THE TRIBUNAL AND CONSISTENT VIEW HAS BEEN TAKEN THAT THE AMENDMENT B ROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 IN CLAUSE (C ),(D) & (E) OF SUB-SECTION (1) OF SECTION 200A OF THE ACT ARE PROS PECTIVE IN NATURE, THEREFORE, FEE U/S 234E CANNOT BE LEVIED IN THE STATEMENT PROCESSED U/S 200A UP TO 31.05.2015. 11. COORDINATE AGRA BENCH IN THE CASE OF SUDARSHANG OYAL (SUPRA) ADJUDICATING VERY SAME ISSUE OBSERVED AS FO LLOWS: THE ISSUE INVOLVED IN THIS APPEAL IS AS TO WHETHER LATE FILING FEE U/S 234E OF THE IT ACT HAS RIGHTLY BEEN CHARGED IN THE INTIMATION DATED 10.11.2013 ISSUED U/S 200 A OF THE ACT WHILE PROCESSING THE TDS RETURNS/STATEMENT, THE ENABLING CLAUSE (C) HAVING BEEN INSERTED IN THE SECTION W.E.F. 01.0 6.2015. BEFORE 01.06.2015, THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U /S 234E. AS SUCH, AS PER THE ASSESSEE, IN RESPECT OF TDS STATEM ENT FILED FOR A PERIOD PRIOR TO 01.06.2015, NO LATE FEE COULD BE LEVIED IN THE INTIMATION ISSUED U/S 200 A OF THE ACT . ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 9 3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTER AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UOI ', 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) H AS HELD THAT THIS DECISION WAS I.T.A NO. 442/AGRA/2017 & S.A. NO . 01/AGRA/2018 DELIVERED AFTER CONSIDERING NUMEROUS I TAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KA URANI' (SUPRA) HOLDS THE FIELD. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRIFATE HRAJSINGHVI AND OTHERS VS.UOI', 73 TAXMANN.COM 252 (KER), AS AL SO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISS UE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TA KEN INTO CONSIDERATION BY THE HON'BLE GUJARAT HIGH COURT WHI LE PASSING 'RAJESH KAURANI' (SUPRA). HOWEVER, WHILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SE TTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFER ENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESS EE NEEDS TO BE FOLLOWED. IT HAS SO BEEN HELD BY THE HON'BLE SUP REME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD .', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HIGH COURT QUA THE A SSESSEE. 5. IN 'SHRIFATEHRAJSINGHVI AND OTHERS' (SUPRA) IT H AS BEEN HELD, INTER ALIA, AS FOLLOWS: '22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN B E READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARA CTER OR EFFECT. ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 10 RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMP UTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SE CTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR T HAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PER MIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST.' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SHRIFATEHRAJSINGHVI AND OTHERS' (SUPRA), 'SIBIA HE ALTHCARE PVT. LTD. VS. DCIT (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BE NCH OF THE TRIBUNAL, AND 'SHRIKAUR CHAND JAIN VS. DCIT, CP C (TDS) GHAZIABAD', ORDER DATED 15.09.2016, IN ITA NO.378/A SR/2015, FOR A.Y. 2012-13, I.T.A NO. 442/AGRA/2017 & S.A. NO . 01/AGRA/2018 THE GRIEVANCE OF THE ASSESSEE IS ACCEP TED AS JUSTIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CANCELLED. 12. SIMILARLY COORDINATE JAIPUR BENCH IN THE CASE O F M/S. MENTOR INDIA LTD. (SUPRA) TOOK THE SAME VIEW FAVOURING THE ASSESSEE OBSERVING AS FOLLOWS : 6. NOW THE ASSESSEE IS IN APPEAL BEFORE US. IN IT A NO. 438/JP/2016, THE ONLY EFFECTIVE GROUND IS AGAINST C ONFIRMATION OF LATE FILING FEE OF RS. 48,402/'; CHARGED BY THE A.O. U/S 234E OF THE ACT. IN THIS REGARD, THE LD. AR OF THE ASSES SEE HAS REITERATED THE ARGUMENTS AS MADE IN THE WRITTEN SUB MISSIONS AND HAS FURTHER SUBMITTED THAT THE ISSUE IS NO MORE RES-INTEGRA. HE PLACED RELIANCE ON THE DECISION OF THE ITAT, AHM ADABAD DECISION IN THE CASE OF PERFECT CROPSCIENCE PVT. LT D. VS DCIT IN ITA NO. 2957 TO 2963/AHD/2015 AND THE DECISION OF T HE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJSINGHVI & ORS. VS UNION OF INDIA & DRS. (2016) 289 CTR (KAR) 602. ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 11 7. ON THE CONTRARY, THE ID DR HAS OPPOSED THE SUBM ISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. SHE RELIED ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COU RT RENDERED IN THE CASE OF DUNDLODSHIKSHANSANSTHAN VS. UNION OF IN DIA (2015) 63 TAXMANN.COM 243 (RAJ.). 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND AL SO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. RECENT LY THE COORDINATE BENCH OF JAIPUR ITAT IN THE CASE OF M/S. SANDEEPJHANWAR ADVISORY SERVICES PVT. LTD. VS. THE TDS CPC, GAZIABAD IN ITA NO. 722 & 723/JP/2016 FOR THE A.Y. 2013-14 / Q-3 & 4 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY O BSERVING AS UNDER:- '3.5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE CA SE LAWS RELIED UPON BY THE LD. COUNSEL. WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL THAT HE JURISDICTIONAL HIGH COURT HA S DECIDED THE VALIDITY OF SECTION 234E , BUT HAS NOT DECIDE THE ISSUE OF POWER OF AO FOR LEVY OF TAX UNDER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE OF M/S. DUNDLODSHIKSHANSANSTHAN AND OTH ERS (SUPRA) AS RELIED BY LD. CIT (A). WE HAVE CONSIDERE D THE RECENT DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CAS E OF SHRIFATHERAJSINGHVI&ORS (SUPRA) WHEREIN THE ISSUE O F LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFO RE 01.06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HON'BLE HIGH COURT AND IN PARA 24 OF THE SAID ORDER IT WAS HELD THAT 'NO DEMAND FOR FEE U/S 234E CAN BE MADE IN INTIMATION I SSUED FOR TDS DEDUCTED U/S 200A BEFORE GEETA STAR HOTELS & RE SORTS PVT. LTD. VS. DCIT 01.06.2015'. WE HAVE ALSO GONE THROUG H THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP PVT. LTD . (SUPRA) WHEREIN THE HON'BLE APEX COURT HAS DISCUSSED IN DETAIL THE GENERAL PRINCIPLE OF CONCER NING RETROSPECTIVELY AND HELD THAT UNLESS CONTRARY INTEN TION APPEARS, A LEGISLATION IS PRESUMED NOT TO HAVE A RETROSPECTI VE OPERATION. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HON'B LE SUPREME COURT AND HON'BLE KARNATAKA HIGH COURT, WE SET ASID E THE ORDER OF LD. CIT (A) AND DIRECT THE AO TO DROP THE DEMAND RAISED OF RS. ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 12 4,200/- U/S 234E ON STATEMENTS PROCESSED U/S 200A B EFORE 01.06.2015. THUS GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED.' THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F DUNDLODSHIKSHANSANSTHANVS. UNION OF INDIA (SUPRA) H AS DECIDED THE ISSUE OF VIRES OF SECTION 234E OF THE A CT. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJSINGHVI &ORS. VS UNION OF INDIA &ORS. (SUPRA) HAS HELD THAT THE DEMA ND U/S 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U/S 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POW ER U/S 200A FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YE ARS PRIOR TO 1ST JUNE, 2015. WHEN THE INTIMATION OF THE DEMAND N OTICES U/S 200A IS HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RELATES TO COMPUTATION AND DEMAND OF FEE U/S 234E, THE QUESTIO N OF FURTHER SCRUTINY FOR TESTING THE CONSTITUTIONAL VAL IDITY OF SECTION 234E WOULD BE RENDERED AS AN ACADEMIC EXERCISE. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F DUNDLODSHIKSHAN GEETA STAR HOTELS & RESORTS PVT. LT D. VS. DCIT SANSTHAN VS. UNION OF INDIA (SUPRA) HAS ALSO C ONSIDERED THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN TH E CASE OF RASHMIKANTKUNDALIA VS. UNION OF INDIA (2015) 229 TA XMAN 596 WHEREIN THE HON'BLE HIGH COURT HAS DECIDED THE NATU RE OF DEMAND. THE HON'BLE HIGH COURT HAS HELD THAT SECTIO N 234E OF THE ACT IS NOT PUNITIVE IN NATURE BUT A FEE WHICH I S A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAS TO P ROVE DUE TO THE LATE FILING OF THE TDS STATEMENTS. HENCE FROM B OTH THE DECISIONS RELIED UPON BY THE LD. DR, THE ISSUE OF P OWER OF IMPOSING LATE FEE IS NOT DECIDED BUT THE HON'BLE KA RNATAKA HIGH COURT IN THE CASE OF FATHERAJSINGHVI&ORS. VS. UNION OF INDIA &ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAISED VIDE IMPUGNED DEMAND NOTICE U/S 200 A OF THE ACT . WE FIND FORCE IN THE CONTENTION OF THE LD. AR OF THE ASSESSEE. IF TH ERE IS CONFLICTING VIEWS TAKEN BY THE TWO HON'BLE COURTS, THEN THE VIE W, WHICH FAVOURS THE ASSESSEE SHOULD BE ADOPTED. IN THIS REG ARD, THE LD AR OF THE ASSESSEE HAS RELIED ON THE DECISION OF TH E HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHI P P. LTD. (2014) 367 ITR 466 (SC). IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHI P (SUPRA), THE DEMAND SO RAISED ARE DIRECTED TO BE DELETED. ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 13 SIMILARLY IDENTICAL FINDINGS HAVE ALSO BEEN GIVEN I N ALL THE APPEALS OF OTHER ASSESSMENT YEARS.' 13. WE FURTHER FIND THAT THE COORDINATE AGRA BENCH IN THE CASE OF STATE BANK OF INDIA, GWALIOR (SUPRA) AGAIN DECID ED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION IN CASE O F SUDARSHANGOYAL(SUPRA) OBSERVING ASFOLLOWS : 8. HEARD THE RIVAL CONTENTION AND PERUSED THE MATER IAL RELEVANT. WE FIND THAT WHILE DECIDING THE ISSUE AGAINST THE A PPELLANT ASSESSEE THE LD. CIT(A) HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UNION OF INDIA ', 83 TAXMANN.COM 137 (GUJ.) WHEREIN IT WAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A TDS STATEM ENT OF DEDUCTION OF TAX AT SOURCE AND FOR MAKING ADJUSTMEN T. THE LD. CIT(A) HAS FURTHER HELD THAT THIS DECISION WAS DELI VERED AFTER CONSIDERING NUMEROUS ITAT AND HIGH COURT DECISIONS AND THEREFORE THIS DECISION IN 'RAJESH KAURANI' (SUPRA) , HOLDS THE FIELDS. 9. IT IS SEEN THAT PRIOR 01.06.2015, THERE WAS NO E NABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U/S 234E OF THE ACT. THE PROVISION OF SECTION 234E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROV ISION WHICH COULD NOT BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY D ELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. T HE COUNSEL FOR THE ASSESSEE HAS RIGHTLY CONTENDED THAT IN THE ABSENCE OF ENABLING PROVISIONS U/S 200 A OF THE ACT , SUCH LEVY OF LATE FEE IS NOT VALID RELYING ON GROUP OF SBI AND ORS. THE DECISIONS IN THE CASES OF ' CIT VS. VATIKA TOWNSHIP PVT. LTD . (2014) 367 ITR 466 ( SC), 'SUDARSHANGOYALVS DCIT (TDS)' ITA NO .442/AGR/2017 AND FATEHRAJSINGHVIVS. UOI (2016) 289 CTR 0602 (KARN) (HC). THE DECISIONS RELIED ON BY THE LD . DR ARE DISTINGUISHABLE ON FACTS, AS THE ISSUE INVOLVED IN THOSE CASES PERTAINS TO INTEREST U/S 201(1) AND 201(1A) ON THE AMOUNT OF TDS WHEREAS IN THE PRESENT CASES THE ISSUE WERE PER TAINS TO LIABILITY OF LATE FEE U/S 234E OF THE ACT FOR DELAY IN FILING TDS STATEMENT WHICH WAS INSERTED FROM 01.06.2015. ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 14 10. ON SIMILAR FACTS, WE HAVE DECIDED THE SAME ISSU E IN THE ASSESSEE'S OWN CASE ' SUDERSHANGOYAL VS. DCIT (TDS )', IN ITA NO. 442/AGRA/2017 DTD. 09.04.2018 AUTHORED BY ONE O F US (THE LD. J.M.). THE RELEVANT PART OF THE ORDER IS REPROD UCED AS FOLLOWS: '3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTE R AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UOI ', 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) H AS HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMER OUS ITAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KAURANI' (SUPRA) HOLDS THE FIELD. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI GRO UP OF SBI AND ORS. FATEHRAJSINGHVI AND OTHERS VS.UOI ', 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY THE HON'BLE GUJARA T HIGH COURT WHILE PASSING 'RAJESH KAURANI' (SUPRA). HOWEVER, WH ILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INT O CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS A CLEAVAGE OF O PINION BETWEEN DIFFERENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED. IT HAS SO BEEN H ELD BY THE HON'BLE SUPREME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD .', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECIS ION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HI GH COURT QUA THE ASSESSEE. 5. IN 'SHRIFATEHRAJSINGHVI AND OTHERS' (SUPRA) IT H AS BEEN HELD, INTER ALIA, AS FOLLOWS: '22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 15 RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTI ON (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND N OT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE D EMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORT ED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR T HE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. H OWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAI D THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESA ID VIEW WILL NOT PERMIT THE GROUP OF SBI AND ORS. DEDUCTOR TO RE OPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROT EST.' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SHRIFATEHRAJSINGHVI AND OTHERS' (SUPRA), 'SIBIA HE ALTHCARE PVT. LTD. VS. DCIT (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BE NCH OF THE TRIBUNAL, AND 'SHRIKAUR CHAND JAIN VS. DCIT, CP C (TDS) GHAZIABAD', ORDER DATED 15.09.2016, IN ITA NO.378/A SR/2015, FOR A.Y. 2012-13, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CANCELLED.' 11. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING 'SHRIFATEHRAJSINGHVI AND ORS' (SUPRA), 'SIBIA HEALT HCARE PVT. LTD. VS. DCIT (SUPRA), 'SHRIKAUR CHAND JAIN VS. DCIT', ( SUPRA), AND OUR OWN FINDING IN THE CASE OF 'SUDERSHANGOYAL' (SU PRA), WE ACCEPT THE GRIEVANCE OF THE ASSESSEES AS GENUINE. A CCORDINGLY, THE ORDERS OF THE CIT(A) ARE REVERSED AND THE FEE S O LEVIED UNDER SECTION 234E OF THE ACT IS CANCELLED. 14. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISION OF THE COORDINATE BENCH CONSISTENTLY HOLDI NG THAT IN THE INTIMATION PREPARED U/S 200A OF THE ACT UP TO 31 ST MAY 2015, THE LATE FILING FEE U/S 234E OF ACT CANNOT BE CHARG ED WHILE PROCESSING THE TDS RETURN/STATEMENT BECAUSE ENABLIN G CLAUSE (C) OF SUB-SECTION (1) OF SECTION 200A HAVE BEEN IN SERTED W.E.F. 01.06.2015 AND BEFORE THIS AMENDMENT W.E.F 01.06.20 15 THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A OF TH E ACT FOR RAISING DEMAND IN RESPECT OF LEVY OF FEES U/S 234E OF THE ACT. ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 16 15. WE ARE OF THE CONSIDERED OPINION THAT IN ALL TH ESE 56 APPEALS THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF LATE FEE U/S 234E OF THE ACT. WE, ACCORDINGLY, SET ASIDE THE FIN DINGS OF LD. CIT(A) IN ALL THESE APPEALS AND ALLOW THE COMMON IS SUE IN FAVOUR OF THE ASSESSEE. 12. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTANCE S OF THE CASE AS WELL AS FOLLOWING THE DECISIONS GIVEN BY U S IN THE CASE OF STATE BANK OF INDIA, GENDACHOWK AND OTHERS DATED 13.11.2018 (SUPRA) AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018(SUPRA), BHUPESH KUMAR J. SANGHVI& OTHERS IN ITANO.15/IND/2018 & OTHERS, ORDER DATED 22.01.2019(SUPRA) AND INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDER DATED 20.02.2020 ARE OF THE OPINION THAT IN THE GIVEN SET O F FACTS OF THE INSTANT APPEALS WHEREIN FEE U/S 234E OF THE ACT WAS LEVIED IN THE STATEMENTS PROCESSED U/S 200A OF THE A CT BEFORE 01.06.2015 I.E. BEFORE THE AMENDMENT BROUGHT INTO EFFECT FROM 01.06.2015 IN SECTION 200A OF THE ACT T HEREBY ENABLING THE REVENUE AUTHORITIES TO RAISE DEMAND IN RES PECT OF LEVY OF FEES U/S 234E OF THE ACT. LD. CIT(A) ERR ED IN CONFIRMING THE LEVY OF LATE FEES U/S 234E OF THE ACT BY THE ASSESSING OFFICER. ACCORDINGLYFINDINGS OF LD. CIT(A) IN ALL ITANOS.412 OF 2019 AND OTHERS SUKHMANI AUTO MOBILES & DR. ARUNESH KUMAR 17 THESE APPEALS ARE REVERSED AND REVENUE IS DIRECTED TO D ELETE THE LEVY OF FEES U/S 234E OF THE ACT IN ALL THESE 4 CASES. THUS, COMMON ISSUE RAISED IN ALL THESEAPPEALS ARE DECIDE D IN FAVOUR OF THE ASSESSEES. 13. IN THE RESULT, ALL THESE APPEALSAT THE INSTANCE OF ASSESSEE(S) ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19.03.202 0. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 19/03/2020 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE