ROSE ROCK REAL ESTATE INDIA PVT., Mumbai V. ITO (TDS) 2(1)(3), Mumbai

ITA 4824/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6745 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 18-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Charitable institution; Period of limitation; Retrospective amendment; Difference of opinion; TDS; Set aside
• Section: 234E; 200A; 113; 2(A); 73; 13; 154

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) I.T.A. NO. 4824/MUM/2019 (ASSESSMENT YEAR 2013-14) I.T.A. NO. 4823/MUM/2019 (ASSESSMENT YEAR 2015-16) ROSE ROCK REAL ESTATE INDIA PVT. LTD. 1, GORDHAN BUILDING, 2 ND FLOOR, BEHIND GIRGUAM COURT, OFF DR PAREKH STREET OPP. HN (RELIANCE) HOSPITAL PRATHNA SAMAJ MUMBAI-400 004. PAN : AAGCR7537L VS. 1. ACIT-TDS- CPC,GHAZIABAD 2. ITO(TDS)-2(1)(3) 6 TH FLOOR, ROOM NO. 610, K.G. MITTAL AYURVEDIC HOSPITAL CHARNI ROAD WEST MUMBAI-400 002. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI RAJESH MEHTA DEPARTMENT BY SHRI MANOJ KUMAR SINGH DATE OF HEARING 25.08.2021 DATE OF PRONOUNCEMENT 02 .0 9 .2021 O R D E R PER SHAMIM YAHYA (AM) :- THESE ARE APPEALS BY THE ASSESSEE AGAINST RESPECTI VE ORDERS OF LEARNED CIT(A) FOR A.Y. 2013-14 & 2015-16 RESPECTIVELY. 2. SINCE THE ISSUES ARE COMMON AND CONNECTED AND TH ESE ARE BEING CONSOLIDATED AND DISPOSED OF TOGETHER FOR THE SAKE OF CONVENIENCE. 3. SINCE THE GROUNDS OF APPEALS AND ORDERS OF LEARN ED CIT(A) ARE IDENTICAL, WE ARE REFERRING TO GROUNDS OF APPEAL FOR A.Y. 2013 -14. THE GROUNDS READ AS UNDER :- 1. THAT THE LD. AO-CPC-TDS ERRED IN LEVYING AND LD. C IT (APPEALS) ERRED IN CONFIRMING LEVY OF LATE FEE U/S. 234E OF THE INCOME- TAX ACT, 1961 ('THE ACT') BY WAY OF PROCESSING TDS STATEMENT U/S. 200A OF THE ACT. T HE SAME IS CONTRARY TO THE PROVISIONS CONTAINED IN THE ACT AND IS LIABLE TO B E DELETED. 2. THAT THE LD. CIT (APPEALS) ERRED IN NOT APPRECIATI NG THAT IN ABSENCE OF ENABLING PROVISIONS U/S. 200A OF THE ACT, NO LATE FEE U/S. 234E CAN BE LEVIED ROSE ROCK REAL ESTATE INDIA PVT. LTD. 2 IN TDS STATEMENT FILED IN RESPECT OF PERIOD PRIOR TO 0 1.06.2015 AND THE SAME IS LIABLE TO BE DELETED. 3. THAT THE LD. CIT (APPEALS) ERRED IN NOT APPRECIATIN G THAT THE PROVISIONS OF SUBSECTION (2) OF SECTION 200A OF THE ACT EMPOWER TH E BOARD ('CBDT') TO MAKE A SCHEME FOR PROCESSING TDS STATEMENTS ONLY IN RESPECT OF TAX PAYABLE OR REFUND DUE AND NOT IN RESPECT OF LEVYING LATE FEE U/S. 234E OF THE ACT. THUS, ANY INTIMATION ISSUED U/S. 200A LEVYING LATE FEE U/S. 234E IS ILLEGAL AND IS LIABLE TO BE QUASHED. 4. THAT THE LD. CIT (APPEALS) ERRED IN NOT APPRECIATI NG THAT PROCESSING OF TDS STATEMENTS BY TDS-CPC, GHAZIABAD IN RESPECT OF LEVY OF LATE FEE U/S. 234E OF THE ACT IS BEYOND ITS JURISDICTION AND THAT TDS-CPC, GHA ZIABAD HAS ACTED BEYOND ITS JURISDICTION. THEREFORE SUCH AN ORDER IS ILLEGAL AND IS LIABLE TO BE DELETED. 4. BRIEF FACTS OF THIS CASE ARE THAT THE ASSESSEE A S TAX DEDUCTOR HAD FILED ITS TDS QUARTERLY STATEMENT FOR F.Y.2013-14 WITH DELAY AND CPC HAS LEVIED 234E INTEREST AS UNDER :- TDS STATEMENT FOR THE QUARTER DUE DATE OF FILING ACTUAL DATE OF FILING TDS STATEMENT DELAY IN FILING TDS STATEMENT AMOUNT OF LATE FEES U/S. 234E Q3(26Q) 15 TH JAN 2014 10 TH DEC 2014 329 DAYS RS. 37080/- Q4(26Q) 15 TH MAY 2014 10 TH DEC 2014 209 DAYS RS. 41800/- TOTAL IN RS. RS.78,880/- THE DEDUCTOR HAD FILED THE RECTIFICATION APPLICATIO N U/S 154 OF THE ACT, AGAINST THE ORDER PASSED U/S 200A OF THE ACT. THIS APPLICAT ION WAS REJECTED BY THE ITO-TDS, MUMBAI ON 31 ST JULY 2018. 5. LEARNED CIT(A) IN HIS ORDER HAS NOTED THE FACTS AS UNDER : THAT THE DEDUCTOR HAD FILED ITS TDS QUARTERLY STATEMEN T FOR F.Y.2013-14 AS UNDER :- TDS STATEMENT FOR THE QUARTER DUE DATE OF FILING ACTUAL DATE OF FILING TDS STATEMENT DELAY IN FILING TDS STATEMENT AMOUNT OF LATE FEES U/S. 234E Q3(26Q) 15 TH JAN 2014 10 TH DEC 2014 329 DAYS RS. 37080/- Q4(26Q) 15 TH MAY 2014 10 TH DEC 2014 209 DAYS RS. 41800/- TOTAL IN RS. RS.78,880/- ROSE ROCK REAL ESTATE INDIA PVT. LTD. 3 THE CPC TDS RAISED THE DEMAND OF RS. 78.880/- FOR T HE TWO QUARTERS U/S 234E FOR WHICH THE ASSESSEE IS IN APPEAL WITH FOLLO WING GROUNDS. THEREAFTER LEARNED CIT(A) NOTED THE GROUNDS AS UNDER :- 1. THAT THE LD. ASSESSING OFFICER (TDS-CPC) HAD ERRE D IN LEVYING AND CIT(A) ERRED IN CONFIRMING LEVY OF LATE FEES OF RS. 78880/ - & WRONGLY ISSUED ORDER U/S 200A OF THE ACT. 2. THAT THE SEC.200A OF THE ACT DOES NOT PERMIT PROCES SING OF TDS STATEMENT FOR DEFAULT IN PAYMENT OF LATE FEES, EXCEPT ANY ARITHM ETICAL ERROR, OR INCORRECT CLAIM, OR DEFAULT IN PAYMENT OF INTEREST ANY TDS PAYAB LE OR REFUNDABLE ETC BEFORE 01/06/2015. HENCE LATE FEES FOR TDS QUARTERL Y STATEMENT CANNOT BE RECOVERED BY WAY OF PROCESSING UNDER SECTION SEC 200 A. THEREFORE DEMAND NOTICE CANNOT BE ISSUED UNDER THIS SECTION, BUT IF ISS UED, THEN IT IS ILLEGAL. HENCE LIABLE TO BE CANCELLED. 3. THAT THE PROVISIONS OF SEC. 204 OF THE ACT HAS MADE THE PERSON RESPONSIBLE FOR SEC. 190 TO SEC. 203AA AND SEC. 285, THIS PHRASE DOES NOT COVER SEC.234E, IT MEANS NO ONE IS RESPONSIBLE FOR DEFAULT U/S 234E OF THE ACT & NONE CAN BE HELD RESPONSIBLE TO DEPOSIT IT. 4. THAT THE TDS STATEMENT HAS BEEN PROCESSED U/S 200A B Y TDS-CPC, WHEREAS AS PER SEC 200A(2), CBDT HAS NOT AND CANNOT A UTHORIZE TDS-CPC TO LEVY LATE FEE. THEREFORE, LEVY OF LATE FEE IS BEYON D JURISDICTION. 5. AS PER PROVISO TO SEC 200A, 'NO INTIMATION UNDER THI S SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED.' AS INTIMATION SENT AFTER 31/03/2 016 FOR FY 13-14, Q4, 26Q THEREFORE INTIMATION ISSUED IS ITSELF WRONG. 6. THAT THE INTEREST HAS BEEN CHARGED ON THE AMOUNT OF 234E, WHEREAS LATE FEE IS NOT AN AMOUNT OF TAX. THEREFORE, INTEREST CHARGE D ON LATE FEE IS UNLAWFUL AND WRONG HENCE LIABLE TO BE CANCELLED. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR WI THDRAW ANY OF THE GROUNDS OF APPEAL. 6. HE NOTED INTER ALIA FOLLOWING SUBMISSIONS : 2. PROCESSING OF TDS STATEMENT PERTAINING TO TDS STAT EMENT FALLEN DUE BEFORE 1-6-2015, LEVYING LATE FEES U/S.234E IS AGAI NST THE LAW:- SECTION 200A HAS BEEN AMENDED W.E.F. 01/06/2015 TO PASS ORDER U/S.200A FOR THE PURPOSE OF LEVYING LATE FEES U/S.234E FOR T DS STATEMENTS WHICH WERE DUE TO BE FILED ON OR AFTER 1-6-2015 &FOR TDS DEDUCT ED ON OR AFTER 1-6-2015 & THUS IT IS CLEAR THAT ORDERS LEVYING LATE FEE U/S 23 4E PASSED FOR TDS STATEMENT WHICH WERE DUE TO BE FILED BEFORE 1-6-2015&F OR TDS DEDUCTED BEFORE 01/06/2015 ARE WRONG, UNLAWFUL AND BEYOND JU RISDICTION HENCE LIABLE ROSE ROCK REAL ESTATE INDIA PVT. LTD. 4 TO BE QUASHED AND LATE FEE SHOULD BE DELETED IN VIEW OF VARIOUS HIGH COURT AND TRIBUNAL JUDGMENTS OF COORDINATE BENCHES ALSO. HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHV I & ORS. VS. UNION OF INDIA &ORS.(2016) 96 CCH 0337 HELD THAT 'AS THE AMENDMENT TO S. 200A HAS COME INTO EFFECT ON 1.6.2015 AND HAS PROSPECTIVE EF FECT, NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR THE FEE U/S 23 4E CAN BE MADE FOR TDS DEDUCTED PRIOR TO 1.6.2015. HENCE, THE DEMAND NOTIC ES U/S 200A FOR PAYMENT OF FEE U/S 234E IS WITHOUT AUTHORITY OF LAW. THIS JUDGEMENT WAS ALSO FOLLOWED BY KARNATAKA HIGH COURT IN THE CASE OF SREE AYYAPPA E DUCATIONAL CHARITABLE TRUST VS. DEPUTY COMMISSIONER OF INCOME TAX & ANR.(2 017) [WRIT PETITION NO.618/2015 C/W WRIT PETITION NOS.5831/2015 & 5990-6 001/2015 (T-IT)]. IN THE SAID CASE HON'BLE KARNATAKA HIGH COURT HAS HELD A S UNDER :- 'IN VIEW OF THE AFORESAID OBSERVATIONS AND DISCUSSI ON, THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT FOR COMPUTATI ON AND INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E AS THEY RELATE TO FOR THE PERIOD OF THE TAX DEDUCTED PRIOR TO 1.6.2015 ARE SET ASIDE.' KARNATAKA HIGH COURT IN CASE OF KORAGA POOJARI RAVI NDRAVS UNION OF INDIA ON 12 DECEMBER, 2017, WRIT PETITION NOS.9049/ 2015 & 26715/2015 (T-IT) FOLLOWED THE CASE OF FATHERAJ SIN GHVI & ORS. VS. UNION OF INDIA &ORS, & THIS IS NOT DISPUTED BY THE LEARNED COUNSEL FOR THE REVENUE & WAS DECIDED IN FAVOUR OF ASSESSEE. 2.1 COORDINATE ITAT BENCHES AND VARIOUS BENCHES AND KARNATAKA HIGH COURT HAS HELD THAT NO LATE FEE CAN BE LEVIED IF THE DUE DATE OF FILING TDS STATEMENT WAS BEFORE 1-6-2015 I.E. DATE OF PROCESSING U/S 200A OF THE TDS STATEMENT IS NOT TO BE CONSIDERED BUT DUE DATE OF FILIN G IS TO BE CONSIDERED :- THE SAME VIEW IS SUPPORTED BY THE RECENT JUDGMENT OF HON'BLE ITAT PUNE BENCH BEING COORDINATE BENCH IN THE CASE OF GANGAMA I COLLEGE V. ACIT TDS CPC VIDE ITA NO. 1167/PUN/2018 IN ORDER DATED 06-11 -2018 HELD THAT, '75. IN OTHER WORDS, THE HON'BLE HIGH COURT OF KARNATAKA EX PLAINED THE POSITION OF CHARGING OF LATE FILING FEES UNDER SECTION 234E OF THE ACT AND THE MECHANISM PROVIDED FOR COMPUTATION OF FEES AND FAILUR E FOR PAYMENT OF FEES UNDER SECTION 200A OF THE ACT WHICH WAS BROUGHT ON S TATUTE W.E.F. 01.06.2015. THE SAID AMENDMENT WAS HELD TO BE PROSPE CTIVE IN NATURE AND HENCE, NOTICES ISSUED UNDER SECTION 200A OF THE ACT F OR COMPUTATION AND INTIMATION FOR PAYMENT OF LATE FILING FEES UNDER SEC TION 234E OF THE ACT RELATING TO THE PERIOD OF TAX DEDUCTION PRIOR TO 01.06.2 015 WERE NOT MAINTAINABLE AND WERE SET ASIDE BY THE HON'BLE HIGH COURT. IN VIEW OF SAID PROPOSITION BEING LAID DOWN BY THE HON'BLE HIGH COU RT OF KARNATAKA (SUPRA), THERE IS NO MERIT IN OBSERVATIONS OF CIT(A) THAT IN THE P RESENT CASE, WHERE THE RETURNS OF TDS WERE FILED FOR EACH OF THE QUARTERS AF TER 1ST DAY OF JUNE, 2015 AND EVEN THE ORDER CHARGING LATE FILING FEES WAS PA SSED AFTER JUNE, 2015, THEN THE SAME ARE MAINTAINABLE, SINCE THE AMENDMENT HAD COME INTO EFFECT. THE CIT(A) HAS OVERLOOKED THE FACT THAT NOTICES UNDER S ECTION 200A OF THE ACT WERE ISSUED FOR COMPUTING AND CHARGING LATE FILING F EES UNDER SECTION 234E OF THE ACT FOR THE PERIOD OF TAX DEDUCTED PRIOR TO 1ST DAY O F JUNE, 2015. THE ROSE ROCK REAL ESTATE INDIA PVT. LTD. 5 SAME CANNOT BE CHARGED BY ISSUE OF NOTICES AFTER 1ST D AY OF JUNE, 2015 EVEN WHERE THE RETURNS WERE FILED BELATEDLY BY THE DEDUC TOR AFTER 1ST JUNE, 2015, WHERE IT CLEARLY RELATED TO THE PERIOD PRIOR TO 01.06. 2015. 16. WE HOLD THAT THE ISSUE RAISED IN THE PRESENT BUNCH OF APPEALS IS IDENTICAL TO THE ISSUE RAISED BEFORE THE TRIBUNAL IN DIFFERENT B UNCHES OF APPEALS AND SINCE THE AMENDMENT TO SECTION 200A OF THE ACT WAS PRO SPECTIVE IN NATURE, THE ASSESSING OFFICER WHILE PROCESSING TDS RETURNS/S TATEMENTS FOR THE PERIOD PRIOR TO 01.06.2015 WAS NOT EMPOWERED TO CHARGE LATE F ILING FEES UNDER SECTION 234E OF THE ACT, EVEN IN CASES WHERE SUCH TD S RETURNS WERE FILED BELATEDLY AFTER JUNE, 2015 AND EVEN IN CASES WHERE THE ASSESSING OFFICER PROCESSED THE SAID TDS RETURNS AFTER JUNE, 2015. ACC ORDINGLY, WE HOLD THAT INTIMATION ISSUED BY ASSESSING OFFICER UNDER SECTIO N 200A OF THE ACT IN ALL THE APPEALS DOES NOT STAND AND THE DEMAND RAISED BY C HARGING LATE FILING FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAM E IS DELETED. 17. BEFORE PARTING, WE MAY ALSO REFER TO THE ORDER OF CIT(A) IN RELYING ON THE DECISION OF HON'BLE HIGH COURT OF GUJARAT IN RAJESH K OURANI VS. UNION OF INDIA (SUPRA). ON THE OTHER HAND, THE LEARNED AUTHORI ZED REPRESENTATIVE FOR THE ASSESSEE HAS POINTED OUT THAT THE ISSUE IS SETTLED IN FAVOUR OF ASSESSEE BY THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF FA THERAJ SINGHVI VS. UNIONOF INDIA (SUPRA). SINCE WE HAVE ALREADY RELIED ON THE SAID RATIO LAID DOWN BY THE HON'BLE HIGH COURT OF KARNATAKA, THE CIT( A) HAS MIS-REFERRED TO BOTH DECISIONS OF HON'BLE HIGH COURT OF KARNATAKA AND HON'BLE HIGH COURT OF GUJARAT; BUT THE CIT(A) HAS FAILED TO TAKE INTO CONSIDE RATION THE SETTLED LAW THAT WHERE THERE IS DIFFERENCE OF OPINION BETWEEN DIFF ERENT HIGH COURTS ON AN ISSUE, THEN THE ONE IN FAVOUR OF ASSESSEE NEEDS TO BE FOLLOWED AS HELD BY THE HON'BLE SUPREME COURT IN CIT VS. M/S. VEGETABLE PRODU CTS LTD. (SUPRA), IN THE ABSENCE OF ANY DECISION RENDERED BY THE JURISDIC TIONAL HIGH COURT. THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (2015) 54 TAXMANN.COM 200 (BOM) HAD DECIDED THE CONST ITUTIONAL VALIDITY OF PROVISIONS OF SECTION 234E OF THE ACT AND HAD HELD TH EM TO BE ULTRA VIRES BUT HAD NOT DECIDED THE SECOND ISSUE OF AMENDMENT BROUGHT T O SECTION 200A OF THE ACT W.E.F. 01 06.2015. IN VIEW THEREOF, RESPECTFUL LY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE HIGH COURT OF KARNATAKA AND PUNE BENCH OF TRIBUNAL IN SERIES OF CASES, WE DELETE THE LATE FILING FEES CHAR GED UNDER SECTION 234E OF THE ACT FOR THE TDS RETURNS FOR THE PERIOD PRIOR TO 01. 06.2015. 18. FURTHER BEFORE PARTING, WE MAY ALSO REFER TO THE O RDER OF CIT(A) IN THE CASE OF JUNAGADE HEALTHCARE PVT. LTD., WHERE THE CIT (A) HAD DISMISSED APPEALS OF ASSESSES BEING DELAYED FOR PERIOD OF DEC EMBER, 2013 AND JULY, 2014. THE CIT(A) WHILE COMPUTING DELAY HAD TAKEN THE D ATE OF INTIMATION UNDER SECTION 200A OF THE ACT AS THE BASIS, WHEREAS TH E ASSESSEE HAD FILED APPEALS BEFORE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE ACT. THE CIT(A) HAD NOTED THAT RECTIFICATION APPLICATION WAS FILED IN FEBRUARY, 2018 WHICH WAS REJECTED BY CPC ON THE SAME DAY. THE CIT(A) WAS OF THE VIEW THAT THERE WAS NO MERIT IN CONDONATION OF DELAY, WHER EIN APPEALS WERE FILED BEYOND THE PERIOD PRESCRIBED. THE ASSESSEE HAD FILE D APPEALS AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE ACT, HENCE THE TIME PERIOD OF APPEALS FILED BY ASSESSEE BEFORE THE CIT(A) HAVE TO BE COMPU TED FROM THE DATE OF ROSE ROCK REAL ESTATE INDIA PVT. LTD. 6 ORDER PASSED UNDER SECTION 154 OF THE ACT AND NOT FROM THE DATE OF ISSUE OF INTIMATION. THUS, THERE IS NO MERIT IN THE ORDER OF CIT(A) IN DISMISSING THE APPEALS OF ASSESSEE ON THIS ISSUE. 19. WE FIND SIMILAR ISSUE HAS BEEN DECIDED BY US IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL VS. ACIT(CPC)-TDS (SUPR A) AND VIDE PARA 15, ORDER DATED 21.12.2017 IT WAS HELD AS UNDER:- FURTHER, BEFORE PARTING, WE MAY ALSO REFER TO THE O RDER OF THE CIT(A) IN THESE TWO APPEALS. THE CIT(A) HAD DISMISSED THE APP EALS OF THE ASSESSEE BEING DELAYED FOR A PERIOD OF TWO AND HALF YEARS. THE CIT(A) HAD TAKEN THE DATE OF INTIMATION UNDER SECTION 200A (3) DATED 07- 08- 2014 AND COMPUTED THE DELAY IN FILING THE APPEAL LA TE BEFORE HIM. HOWEVER, THE ASSESSEE HAD FILED THE APPEAL BEFORE T HE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE ACT. THE SAID APPLICATION FOR RECTIFICATION UNDER SECTION 154 WAS FILED ON 08-06- 2017/09-03-2017 IN THE RESPECTIVE YEARS. THE SAID APPLICATION WAS DECI DED BY THE ASSESSING OFFICER ON 09-06-2017. THE ASSESSEE FILED AN APPEAL AGAINST THE DISMISSAL OF THE RECTIFICATION APPLICATION FILE D UNDER SECTION 154 OF THE ACT. THE SAID FACT IS CLEAR FROM THE PERUSAL OF FORM NO.35 WITH SPECIAL REFERENCE TO COLUMN 2(A) AND 2(B). IN THE E NTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN T HE ORDER OF CIT(A) IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL, SURGANA IN DISMISSING THE APPEAL IN LIMINE BEING FILED BEYOND THE PERIOD OF LIMITATION. WE HAVE ALREADY DECIDED THE ISSUE ON ME RITS IN FAVOUR OF ASSESSEE.' WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAVO UR OF ASSESSEE. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY ASSESS EE IN ALL APPEALS ARE ALLOWED.' SINCE THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEA LS IS SIMILAR TO THE ISSUE BEFORE THE TRIBUNAL IN THE CASES OF MEDICAL SUPERINT ENDENT RURAL HOSPITAL AND JUNAGADE HEALTHCARE PVT. LTD. (SUPRA) AND WE HAVE DECIDED BOTH THE ISSUES IN FAVOUR OF ASSESSEE, WE HOLD THAT THE ASSESSE E IS NOT LIABLE FOR LEVY OF LATE FILING CHARGES UNDER SECTION 234E OF THE ACT FOR THE PERIOD PRIOR TO JUNE, 2015 IN THE ABSENCE OF AMENDMENT TO SECTION 200A OF T HE ACT, WHICH WAS BROUGHT ON STATUTE FROM 01.06.2015. CONSEQUENTLY, WE A LSO HOLD THAT THE APPEALS FILED BY ASSESSEE WERE IN TIME SINCE THE PE RIOD HAS TO BE RECKONED FROM THE DATE OF ORDER UNDER SECTION 154 OF THE ACT A ND NOT FROM THE DATE OF ISSUE OF INTIMATION UNDER SECTION 200A OF THE ACT. ACCO RDINGLY, WE DELETE LATE FILING FEES LEVIED UNDER SECTION 234E OF THE ACT FO R THE PERIOD PRIOR TO JUNE, 2015 THOUGH THE RETURNS OF INCOME WERE FILED AFTER JU NE, 2015 AND EVEN ORDER LEVYING LATE FILING FEES UNDER SECTION 234E OF THE ACT WAS PASSED AFTER JUNE, 2015. THE GROUNDS OF APPEAL RAISED BY ASSESSE E ARE THUS, ALLOWED'. THE LEVY OF LATE FEE U/S 234E IN THE INTIMATION U/S 200A IS CONTRARY TO THE LAW LAID DOWN BY JURISDICTIONAL TRIBUNAL WHICH IS BI NDING ON THE LOWER AUTHORITY AS PER THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF BANK OF BARODA V. H.C. SHRIVASTAVA [(2002) 256 ITR 385 (BOM)] AND THUS, THE ROSE ROCK REAL ESTATE INDIA PVT. LTD. 7 CIT APPEALS HAD IN TURN TO FOLLOW THE LAW LAID DOWN B Y HON'BLE JURISDICTIONAL HIGH COURT WHILE LEVYING THE LATE FEE U /S 234E IN THE INTIMATION U/S 200A AND THEREFORE, NOT FOLLOWING THE D ECISION OF HON'BLE JURISDICTIONAL H.C. WAS A MISTAKE APPARENT FROM RECORD WHICH SHOULD HAVE BEEN RECTIFIED BY WAY OF AN ORDER U/S 154 OF THE ACT . HON'BLE BOMBAY HIGH COURT IN THE PARA 16 OF THE SAID ORDER HAD STATED, '16. AT THIS JUNCTURE, WE CANNOT RESIST FROM OBSERVING THAT THE JUDGMENT DELI VERED BY THE INCOME TAX TRIBUNAL WAS VERY MUCH BINDING ON THE ASSESSING OFF ICER. THE ASSESSING OFFICER WAS BOUND TO FOLLOW THE JUDGMENTS IN ITS TR UE LETTER AND SPIRIT. IT WAS NECESSARY FOR THE JUDICIAL UNITY AND DISCIPLINE THA T ALL THE AUTHORITIES BELOW THE TRIBUNAL MUST ACCEPT AS BINDING THE JUDGMENT OF THE TRIBUNAL. THE ASSESSING OFFICER BEING INFERIOR OFFICER VIS-A-VIS TRIBUNAL, WAS BOUND BY THE JUDGMENT OF THE TRIBUNAL AND THE ASSESSING OFFICER SHOULD NOT H AVE TRIED TO DISTINGUISH THE SAME ON UNTENABLE GROUNDS. IN THIS BEHALF, IT WILL NOT BE OUT OF PLACE TO MENTION THAT IN THE HIERARCHICAL SYSTEM OF COURTS' WHICH EX ISTS IN OUR COUNTRY, 'IT IS NECESSARY FOR EACH LOWER TIER' INCLUDING THE HIGH C OURT, 'TO ACCEPT LOYALLY THE DECISIONS OF THE HIGHER TIERS'. 'IT IS INEVITABLE I N HIERACHICAL SYSTEM OF COURTS THAT THERE ARE DECISIONS OF THE SUPREME APPELLATE T RIBUNAL WHICH DO NOT ATTRACT THE UNANIMOUS APPROVAL OF ALL MEMBERS OF THE JUDICI ARY. BUT THE JUDICIAL SYSTEM ONLY WORKS IF SOMEONE IS ALLOWED TO HAVE THE LAST WORD, AND THAT LAST WORD ONCE SPOKEN IS LOYALLY ACCEPTED.' THE BETTER W ISDOM OF THE COURT BELOW MUST YIELD TO THE HIGHER WISDOM OF THE COURT ABOVE AS HELD BY THE SUPREME COURT IN THE MATTER OF C. C. E. V. DUNLOP INDIA LTD .', IN CASE, ANY DECISION IN FAVOUR OF REVENUE BE CONSI DERED, IT MAY BE APPRECIATED THAT WHERE MORE THAN ONE JUDICIAL INTERPR ETATIONS ARE POSSIBLE, THE ONE, FAVOURABLE TO THE ASSESSEE SHALL APPLY. THUS, THE CASE LAW WHICH IS MORE BENEFICIAL TO THE ASSESSEE SHALL APPLY. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF HON'BLE SUPREME COURT IN CIT V. VEGETABLE PRODUCTS LTD [1973] 88 ITR 192, IF T HE COURT FINDS THAT THE LANGUAGE OF TAXING PROVISION IS AMBIGUOUS OR CAPABLE OF MORE MEANING THAN ONE, THEN THE COURT HAS TO ADOPT THE INTERPRETATION WHIC H FAVOURS THE ASSESSEE. IT IS AN ESTABLISHED LAW THAT WHEN THERE ARE TWO CONFLIC TING DECISION OF DIFFERENT COURTS THEN ONE IN FAVOR OF THE ASSESSEE SHO ULD BE APPLIED. THEREFORE IN THE CASE UNDER CONSIDERATION SINCE THE GUJARAT HIGH COURT IS NOT A JURISDICTIONAL HIGH COURT THEREFORE THE DECISIO N OF GUJARAT HIGH COURT IS NOT BINDING AND TWO FAVORABLE DECISIONS OF KARNATA KA HIGH COURT WHICH ARE IN FAVOR OF THE. ASSESSEE MAY KINDLY BE FOLLOWE D. IN THE CASE OF CIT V. THANA ELECTRICITY SUPPLY L TD. (1994) 206 ITR 727 (BOMBAY) HON'BLE HIGH COURT OF BOMBAY HELD THAT 'DECISION OF HIGH COURT ARE BINDING ON SUBORDINATE COURTS AND DOES NOT EXTE ND BEYOND ITS TERRITORIAL JURISDICTION' AND ALSO HELD THAT 'WHERE THERE ARE CONFLICTING DECISIONS OF COURTS OF CO-ORDINATE JURISDICTION, TH E LATER DECISION IS TO BE PREFERRED IF REACHED AFTER FULL CONSIDERATION OF TH E EARLIER DECISION.' THE SAID VIEW OF THE HON'BLE BOMBAY HIGH COURT ALSO TAL KS ABOUT CO-ORDINATE BENCH AND DOES NOT TALK ABOUT NON-JURISDICTIONAL HIGH COURT. ROSE ROCK REAL ESTATE INDIA PVT. LTD. 8 THEREFORE, THE VIEWS OF HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS (88 ITR 192) (SC) THAT, 'THE VIEW, WHICH FAVOURS THE ASSESSEE HAS TO BE FOLLOWED.' RELIANCE IN THIS REGARD IS PLACED ON THE DECISION O F THE HON'BLE SUPREME COURT IN THE CASE OF SMT. TARULATASHYAM V. CIT [1971 ] 108 ITR 345 (SC) WHEREIN IT WAS HELD THAT THERE IS NO SCOPE FOR IMPOR TING INTO THE STATUTE WORDS WHICH ARE NOT THERE. SUCH IMPORTATION WOULD BE, N OT TO CONSTRUE, BUT TO AMEND THE STATUTE. THUS IT IS CLEAR THAT ORDER U/S.20 0A OF THE ACT HAS BEEN WRONGLY PASSED TO LEVY LATE FEES U/S.234E NOR THERE WAS ANY AUTHORITY AS TDS CPC WAS NOT EMPOWERED TO DO SO. THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN TH E CASE OF CIT V. NAGA HILLS TEA CO. LTD. [1973] 89 ITR 236 (SC) WHEREIN I T WAS HELD AS UNDER: '......IF A PROVISION OF A TAXING STATE CAN BE REAS ONABLY INTERPRETED IN TWO WAYS, THAT INTERPRETATION WHICH IS FAVOURABLE TO TH E ASSESSEE, HAS GOT TO BE ACCEPTED. THIS IS A WELL ACCEPTED VIEW OF LAW.' IN VIEW OF THE ABOVE JUDICIAL DECISIONS, IT IS OF NO DOUBT THAT NO LATE FEE U/S. 234E OF THE ACT CAN BE LEVIED PRIOR TO 1.6.2015 OR A FTER 1-6-2015, HENCE, INTIMATION ISSUED U/S. 200A OF THE ACT IS LIABLE TO BE QUASHED AND LATE FEE U/S. 234E IS LIABLE TO BE DELETED. SPECIAL BENCH OF THE DELHI TRIBUNAL IN THE CASE OF ITO NEW DELHI VS EKTA PROMOTERS PRIVATE LTD (2008) 113 ITD 0719 HELD THAT - HON'BLE SUPREME COURT OF INDIA IN THE CASE OF C OMMISSIONER OF INCOME TAX VS. HINDUSTAN ELECTRO GRAPHITES LTD. (2000) 160 C TR 0008 HELD THAT- IN THE CASE OF ITAT PUNE BENCH 'A' BEING THE C OORDINATE BENCH, MEDICAL SUPERINTENDENT RURAL HOSPITAL, DOBI BK VS DEPUTY COM MISSIONER OF INCOME TAX, CPC (TDS), GHAZIABAD 173 ITD 575 ITAT MUMBAI IN THE CASE OF BCCI V/S ACIT (TDS)- 2, MUMBAI, I.T.A. NO.1999/MUM/2017, IN THE ORDER DATED 5-10-2018 HON'BLE ITAT, MUMBAI BENCH, IN THE CASE OF HARD IK SHANTILAL SHETH VS ACIT (TDS)-CPC, VIDE ITA NO. 6506/MUM/2017 HON'BLE ITAT CUTTACK BENCH IN THE CASE OF SPECT RA VISION VS DCIT, CPC, TDS, GHAZIABAD VIDE. ITA NOS.329 TO 332/CTK /2016, A SSESSMENT YEAR 2013-14 & 2014-15 HON'BLE ITAT, AMRITSAR BENCH, IN THE CASE OF TATA RICE MILLS VS ASST. CIT, CPC, TDS, GHAZIABAD VIDE ITA NO. 395(ASR) 2016, ASS ESSMENT YEAR 2014- 15 HON'BLE ITAT, PUNE BENCH, BEING THE COORDINATE BENCH IN THE CASE OF VIDYA VARDHANI EDUCATION RESEARCH FOUNDATION VS DEP UTY ROSE ROCK REAL ESTATE INDIA PVT. LTD. 9 COMMISSIONER OF INCOME TAX, CPC, TDS, GHAZIABAD VID E ITA NO. 1887/PUN/2016. 7. AFTER NOTING THE ABOVE SUBMISSION OF THE ASSESSE E LEARNED CIT(A) REFERRED TO GAZETTE NOTIFICATION ISSUED BY GOVERNMENT OF IND IA THAT CPC CAN RAISE DEMAND UNDER SECTION 234E OF THE ACT. LEARNED CIT(A ) IN HIS ORDER HAS REJECTED THE ASSESSEES CONTENTION BY OBSERVING AS UNDER : I HAVE GONE THROUGH THE ORIGINAL/CORRECTION STATEMENT F ILED BY HIM AND HIS RESPONSE TO THE DELAY IN FILING OF APPEAL. IN SOME CA SES, RECTIFICATION ORDERS U/S 154 R.W.S. 200A HAS ALSO BEEN PASSED BY THE TDS CPC. THE MAIN GROUND OF APPEAL IS WITH REGARD TO LEVY OF FEE U/S 234E TO T HE ASSESSEE. GROUND NO. 1 AND 7 ARE GENERAL IN NATURE. IN RESPONSE TO THE GROUND NO. 2 AND GROUND NO. 6, TH E APPELLANT HAS SUBMITTED A HOST OF CASE LAWS IN WHICH THE RATIO IS THAT THE INTIMATION U/S 200A CAN BE VALIDLY PROCESSED ONLY AFTER 01/06/2015 . HOWEVER, AT THE SAME THE APPELLANT IS ALSO HARPING ON THE FACT IF THE PERIO D OF DEFAULT IS ALSO PERTAINING PRIOR TO 01/06/2015 EVEN THEN IT CANNOT BE PR OCESSED. THE APPELLANT'S CONTENTION IS FACTUALLY AND LEGALLY MISP LACED. HISTORICALLY, THE LEGAL PROVISIONS REGARDING THIS IS SUE IS THAT IN THE FINANCE (NO.2) ACT, 2009 SECTION 200A WAS INSERTED IN THE IN COME-TAX ACT WHICH PROVIDED FOR PROCESSING OF TDS STATEMENTS FOR DETERMI NING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR. HOWEVER, AS SEC TION 234E WAS INSERTED AFTER THE INSERTION OF SECTION 200A IN THE INCOME-TAX ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE INCOME-TA X ACT DID NOT PROVIDE FOR DETERMINATION OF FEE PAYABLE UNDER SECTION 234E OF TH E INCOME-TAX ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS. ACCORDINGLY, THE PROVISIONS OF SECTION 200A OF THE INCOME-TAX ACT HAS BEEN AMENDED (W.E.F. 0 1/06/2015) SO AS TO ENABLE COMPUTATION OF FEE PAYABLE UNDER SECTION 234E O F THE INCOME-TAX ACT AT THE TIME OF PROCESSING OF TDS STATEMENT UNDER SECTION 200A OF THE INCOME-TAX ACT. THUS, EVEN IF THE PERIOD IS PRIOR TO 0 1/06/2015, THE CHARGING SEC 234E WAS VERY MUCH A PART OF THE STATUTE AND CALLS FOR A LEVY OF FEE FOR DEFAULT IN FURNISHING STATEMENTS. AFTER 01/06/2015, T HE PROCESSING OF STATEMENTS FILED PRIOR TO 01/06/2015 IS ALSO VALID AFT ER THE AMENDMENT IN THE LAW. IN THE INSTANT CASE, THE DATE OF RECTIFICATION ORDER IS 01/01/2017 I.E. AFTER 01/06/2015 WHICH IS VALID AS PER LAW. HENCE, THERE IS NO AMBIGUITY IN INTERPRETING THE FACTS AS WELL AS THE LEGAL POSITION AND CONSIDERING THE SAME, THE ORDER PASSED BY THE CPC TDS IS UPHELD. IN GROUND NO. 4, THE APPELLANT HAS TAKEN THE PLEA THAT THE TDS STATEMENT HAS BEEN PROCESSED U/S 200A BY TDS CPC, WHEREAS AS PER SECTION 200A(2), CBDT HAS NOT AUTHORISED THE CPC TDS TO LEVY LATE FEE. T HEREFORE THE LEVY OF LATE FEE IS BEYOND JURISDICTION. THE CONTENTION OF T HE APPELLANT ON THIS ACCOUNT IS ALSO MISPLACED AS THE CBDT HAS EMPOWERED THE CPC TDS BY THE ROSE ROCK REAL ESTATE INDIA PVT. LTD. 10 CENTRALISED PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE SCHEME 2013 TO PROCESS RETURNS U/S 200A(2) AND TO DETERMINE THE TAX PAYABLE, OR, THE REFUND DUE TO THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB SECTION. IN GROUND NO. 5, THE ASSESSEE HAS SUBMITTED THAT AS P ER PROVISO TO SEC 200A, NO INTIMATION UNDER THIS SUB SECTION SHALL BE SE NT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. AS INTIMATION SENT AFTER 31/03/2016 FOR FY 2013-14, 26Q -Q4 AND THEREFORE THE INTIMATION ISSUED IS ITSELF WRONG. FURTHER, TO VERIFY THE CLAIM OF THE ASSESSEE, A REQUE ST WAS MADE TO THE CPC TDS ON 06/06/2019 TO PROVIDE THE DETAILS OF THIS CASE AND THE CPC TDS VIDE HIS MAIL DATED 06/07/2019 HAS SENT THE FOLLOWING DETA ILS :- TAN MUMR31556A DATE OF FILING OF REGULAR RETURN 10/12/2014 FY 2013-14 DATE OF ORDER OF REGULAR RETURN 13/12/2014 FORM TYPE 26Q COMMUNICATION REFERENCE NO. TDS/1314/26Q/D/ 10/0013204585 QTR Q4 REGISTERED E-MAIL ID BEENA.SAMPAT@SILAGR OUP.CO.IN TO EMAIL ID (REGULAR RETURN) BEENA.SAMPATT@QIL AG ROUP.CO.IN DATE OF INTIMATION SENT BY POST ON REGULAR STATEMENT 08/01/2015 DATE OF INTIMATION SENT BY EMAIL (REGULAR RETURN) 06/01/2015 REPROCESSING (YES/NO) IF YES REASON OF REPROCESSING YES (LP DFLT STRT DATE INCR BY 1 DAY) COMMUNICATION REFERENCE NO. TDS/1314/26Q/D/ 100023744550 ORDER PASS DATE (REPROCESSING) 01/01/2017 EMAIL (REPROCESSING) BEENA.SAMPAT@SILA GROUP.CO.IN EMAIL DATE(REPROCESSING) 01/01/2017 ON PERUSAL OF THE ABOVE MENTIONED DETAILS FURNISHED BY THE CPC TDS, IT IS CRYSTAL CLEAR THAT THE ASSESSEE HAS FIRST FILED THE REG ULAR RETURN ON 10/12/2014 WHICH WAS PROCESSED ON 13/12/2014. THUS THE APPELLANT'S CONTENTION ON THIS ACCOUNT IS NOT SOUND AS THE STATEMENT WAS PROCESSED WITHIN THE YEAR. THE APPELLANT'S ANOTHER GROUND WAS THAT THE ORDER U/S 1 54 WAS NOT AS PER LAW. THE APPELLANT IN DUE COURSE AGAIN FILED THE COR RECTION STATEMENT WHICH WAS PROCESSED ON 01/01/2017. IN THE INSTANT CASE, THE D ATE OF RECTIFICATION ORDER WAS 01/01/2017. THE APPELLANT'S ANOTHER PLEA THAT THE REJECTION OF ORD ER U/S 154 OF THE ASSESSEE BY THE AO IS BAD IN LAW AS LAW IN THIS RESPE CT WAS VERY CLEAR. HOWEVER, IT IS CLEARLY APPARENT THAT WHERE ON AN ISSUE THE TWO HIGH COURTS ARE GIVING DIVERGENT OPINIONS, THE ISSUE IS DEFINITELY DEBATABLE AND CANNOT BE CONSIDERED AS AN APPARENT MISTAKE FROM THE RECORD. TH US, THE REJECTION BY THE AO IS AS PER LAW AND HENCE THIS PLEA OF DELETION OF DEMAND U/S 234E BY ROSE ROCK REAL ESTATE INDIA PVT. LTD. 11 THE AO CANNOT BE ENTERTAINED AT THE TIME OF PASSING AN O RDER U/S 154. HENCE, ON THIS GROUND, THE AO'S ORDER IS UPHELD. AFTER GOING THROUGH ALL THE GROUNDS, THERE IS NO AMBIG UITY IN INTERPRETING THE FACTS AS WELL AS THE LEGAL POSITION AND CONSIDERING THE SAME, THE ORDER PASSED BY THE CPC TDS IS UPHELD. IN SUM, THE APPEAL IS DISMISSED. 8. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE US. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. COUNSEL HAS GIVEN FOLLOWING WRITTEN SUBMISSIONS :- IN RESPECT OF THE CAPTIONED F.Y. 2013-14 (RELEVANT TO A.Y. 2014-15) AND F.Y. 2014-15 (RELEVANT TO A.Y. 2015-16), THERE WAS A DELAY IN FILING TDS STATEMENTS BY THE APPELLANT. THE TDS RETURNS FILED BY TH E APPELLANT WERE PROCESSED BY THE CENTRALIZED PROCESSING CELL OF THE INCOME TAX DEPARTMENT (CPC-TDS, GHAZIABAD) AND INTIMATIONS U/S. 200A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') WERE ISS UED WHEREBY LATE FEE U/S. 234E OF THE ACT WAS LEVIED. AGGRIEVED FROM THE SAID LEVY OF LATE FEE U/S. 234E O F THE ACT, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOM E TAX (APPEALS)-60, MUMBAI. THE LD. CIT(APPEALS)-60, MUMBAI DISMISSED TH E APPEAL VIDE HIS ORDER DATED 07.06.2019. AGGRIEVED FROM SAID ORDER O F CIT(A)-60, MUMBAI, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE HON'BLE TRIBUNAL. THE DETAILS OF TDS STATEMENTS FILED BY THE APPELLANT IS AS UNDER: FINANCIAL YEAR FORM TYPE AND QUARTER DUE DATE OF FILING TDS STATEMENT ACTUAL DATE OF FILING TDS RETURN LATE FEES U/S. 234E (IN RS.) 2013-14 26Q - Q3 15.01.14 10.12.14 37,080/- 2013-14 26Q - Q4 15.05.14 10.12.14 41,800/- 2014-15 26Q-Q1 15.07.14 14.05.16 95,999/- 2014 - 15 26Q - Q2 15.10.14 14.05.16 33,000/ - THE APPELLANT HAS TO SUBMIT AS UNDER: LEVY OF LATE FEE U/S. 234E BY PROCESSING TDS STATEME NTS FOR THE PERIOD PRIOR TO 01.06.2015 IS AGAINST THE PROVISIONS OF THE ACT:- THE LD. CIT(APPEALS)-60, MUMBAI HAS ERRED IN NOT APP RECIATING THAT SEC.200A(L) OF THE ACT DOES NOT PERMIT PROCESSING OF TDS STATEMENT F OR DEFAULT IN PAYMENT OF LATE FEE U/S. 234E OF THE ACT FOR TDS STATEMENTS FA LLING DUE BEFORE 01.06.2015 AND DOING SO IS BEYOND THE SCOPE OF PROCE SSING OF TDS RETURNS BY TDS-CPC, GHAZIABAD. ACCORDINGLY, LATE FEE U/S 234E OF THE ACT FOR TDS ROSE ROCK REAL ESTATE INDIA PVT. LTD. 12 STATEMENTS CANNOT BE RECOVERED BY WAY OF PROCESSING OF TDS RETURNS U/S. 200A. HENCE THE LEVY OF LATE FEE U/S. 234E IS LIABL E TO BE DELETED. THUS, IN LIGHT OF THE AFORESAID AMENDMENT, NO LATE FE E U/S. 234E OF THE ACT COULD BE LEVIED FOR THE TDS STATEMENTS PERTAINING TO TAX DEDUCTED FOR THE PERIOD PRIOR TO 01.06.2015. RELIANCE IN THIS REGARD IS ALSO PLACED ON THE FOLLOW ING JUDICIAL DECISIONS: A. HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHV I & ORS. VS. UNION OF INDIA &ORS. [2016] 73 TAXMANN.COM 252 (KARNATAKA) HEL D AS UNDER: '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 PROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UN DER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFE CT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE D EMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 23 4E COULD NOT BE MADE IN PURPORTED EXERCI SE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF TH E RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. 27. IN VIEW OF THE AFORESAID OBSERVATIONS AND DISCU SSION, THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT FOR COMPUTATI ON AND INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E AS THEY RELATE TO FOR THE PERIOD OF THE TAX DEDUCTED PRIOR TO 1.6.2015 ARE SET ASIDE. ' B. HON'BLE KARNATAKA HIGH COURT - PIXEL PICTURES PVT. LT D. VS. UNION OF INDIA [W.P. NO. 850/2017 & W.P. NOS. 15603-15613/2018] HA S HELD THAT LATE FEE U/S. 234E CANNOT BE LEVIED FOR TDS STATEMENTS PER TAINING TO PERIOD PRIOR TO 01.05.2015. C. HON'BLE MUMBAI ITAT - DILIP SHARAYU BAPAT VS. A CIT, CPC(TDS) [ITA NO. 4849 TO 4851/MUM/2018] VIDE ITS ORDER DATED 29.11.201 9 HAS HELD THAT LATE FEE U/S. 234E OF THE ACT CANNOT BE LEVIED FOR THE TA X DEDUCTED AT SOURCE, PRIOR TO 01.06.2015 D. HON'BLE MUMBAI ITAT - SILA PROJECTS MANAGEMENT SE RVICES PVT. LTD. VS. ACIT, CPC(TDS) [ITA NOS. 1547 - 1556/MUM/2019] VIDE ITS ORDER DATED 19.12.2019 HAS HELD THAT LATE FEE U/S. 234E OF THE A CT CANNOT BE LEVIED FOR THE TDS STATEMENTS FOR TAX DEDUCTED AT SOURCE PRI OR TO 01.06.2015. E. HON'BLE AMRITSAR ITAT - TATA RICE MILLS - |ITA NO . 295/ASR/2016] HAS HELD THAT COMPUTATION OF FEE U/S. 234E COULD NOT BE MAD E FOR TAX DEDUCTED PRIOR TO 01.06.2015. THE HON'BLE TRIBUNAL H AS HELD AS UNDER: 'WHILE COMING TO THE INSTANT CASE, SECOND QUARTERLY STATEMENT RELEVANT TO THE FINANCIAL YEAR 20L4-15 WAS FILED ON 19TH JUNE, 2015 BY THE ASSESSEE ROSE ROCK REAL ESTATE INDIA PVT. LTD. 13 WHICH WAS PROCESSED ON 23RD JUNE, 2015 AND TDS, CPC LEVIED A LATE FEE OF RS.49,400/- WHILE ISSUING ORDER U/S 200A OF THE ACT WHICH WAS CHALLENGED BY THE ASSESSEE BY FILING FIRST APPEAL B EFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. ON FEELING AG GRIEVED AGAINST THE ORDER PASSED BY THE LD. CIT(A), THE ASSESSEE PREFER RED THE INSTANT APPEAL AND IN SUPPORT OF ITS CASE ASST. YEAR: 2014-15 SUBM ITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE LATE FILI NG FEE OF RS.49,400/- LEVIED BY THE DCIT, (TDS), CENTRAL PROCESSING CELL U/S 234 E. FURTHER FAILED TO APPRECIATE THAT THERE IS NO POWER WITH THE AFORE SAID AUTHORITY TO LEVY SUCH LATE FILING FEE IN INTIMATION U/S 200A OF THE I.T. ACT, 1961. THE LD. COUNSEL ALSO RELIED UPON THE JUDGMENT PASSED BY THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OFFATHERAJ SINGHVI & ORS. VS . UNION OF INDIA &ORS. (2016) 289 CTR (KAR) 602 AND SUBMITTED THAT IN THE SAID CASE THE HON 'BLE HIGH COURT HAS HELD THAT AMENDMENT MADE U/S 200A WH ICH CAME INTO EFFECT FROM 1ST JUNE, 2015 IS HELD TO BE HAVING PRO SPECTIVE EFFECT AND NO COMPUTATION OF FEE FOR THE DEMAND U/S 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTIVE ASSESSMENT PRIOR TO 1ST JUNE, 2015. THEREFORE, THE ASSESSEE IS ALSO ENTITLED TO GET THE SAME TREAT MENT. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 25.10. 2017.' F. HON'BLE CHANDIGARH ITAT IN THE CASE OF SONALAC PAINT & COATING LTD. VS. DCIT (2018) 176 DTK 83 (CHD.) AFTER RELYING ON THE JUDGMENT OF HON'BLE AMRITSAR IT AT IN THE CASE OF TATA RICE MILLS VS. ACIT (TDS)-CPC [ITA NO. 395/ASR/2016] HAS HELD THAT LATE FEE U/S. 234E OF THE ACT COULD NOT BE LEVIED FOR THE RETURNS/QUARTERS PRIOR TO 01.06.2015. G. HON'BLE KARNATAKA HIGH COURT IN THE CASE OF SREE A YYAPPA EDUCATIONAL CHARITABLE TRUST VS. DCIT &ANR. [2017] [WRIT PETITION N O. 618/2015 C/W. W.P. NO. W.P. 5831 & 5990-6001/2015] HAS HELD AS UN DER: '27. IN VIEW OF THE AFORESAID OBSERVATIONS AND DISC USSION, THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT FOR COMPUTATI ON AND INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E AS THEY RELATE TO FOR THE PERIOD OF THE TAX DEDUCTED PRIOR TO 1.6.2015 ARE SET ASIDE. ' H. ITAT CHANDIGARH IN THE CASE OF M/S. TERRA INFRA DEVELOPMENT LIMITED HYDERABAD [ITA NO 1876 & 1875/HYD./2017] ASSESSMENT YEARS: 2013-14 & 2014-15 STATED THAT THE COORDINATE BENCH IN THE CASE OF M/S. SONALAC PAINTINGS & COATINGS LTD HELD THAT: 'WE HOLD THAT THE INTEREST U/S 234E CANNOT BE LEVIE D IN RESPECT OF TDS RETURNS FILED PRIOR TO 1.6.2015. TDS FEES UNDER SE. 234E, SONALAC PAINTS & COATING LTD V/S DY CIT ITA NO.LL58/CHD/2017 REPOR TED IN (2018) 167 DTK (CHD B) 83 ORDER DATED 1-5-2018, LEVY OF FE ES BY WAY OF INTIMATION UNDER SE 200A. FEES LEVIED UNDER SEC. 23 4E PRIOR TO 1ST JUNE 2015 IN THE INTIMATIONS MADE UNDER SE 200A WAS WITH OUT AUTHORITY OF LAW AND THE SAME IS THEREFORE DIRECTED TO BE DELETE D. IN VIEW OF THE ABOVE, ALL THE APPEALS OF THE ASSESSEE STANDS ALLOW ED. ' ROSE ROCK REAL ESTATE INDIA PVT. LTD. 14 I. KARNATAKA HIGH COURT IN CASE OF KORAGA POOJARI RAVINDRA VS UNION OF INDIA ON 12 DECEMBER, 2017, W.P. NOS.9049/2015 & 26 715/2015 (T-IT) FOLLOWED THE CASE OF FATHERA SINGHVI & ORS. VS. UNI ON OF INDIA &ORS, & THIS IS NOT DISPUTED BY THE LEARNED COUNSEL FOR THE RE VENUE & WAS DECIDED IN FAVOUR OF ASSESSEE. IN VIEW OF THE ABOVE SUBMISSION OF THE APPELLANT AND TH E ABOVE STATED JUDICIAL DECISIONS, LATE FEE U/S. 234E OF THE ACT CANNOT BE LEV IED FOR TDS STATEMENTS PERTAINING TO THE PERIOD BEFORE 1.6.2015 IN RESPECT OF THE TAX DEDUCTED PRIOR TO 1.6.2015. HENCE, LATE FEE U/S. 234E OF THE ACT IS LIABLE TO BE DELETED. 2. SEC. 204 OF THE ACT HAS NOT MADE ANY ONE RESPO NSIBLE TO DEPOSIT LATE FEE U/S.234E :- WITHOUT PREJUDICE TO THE ABOVE SUBMISSION, THE LD. CIT (A)-60, MUMBAI AND THE LD. AO (CPC-TDS) ERRED IN NOT CONSIDERING THE PROV ISIONS OF SECTION 204 OF THE ACT, WHEREIN 'PERSON RESPONSIBLE FOR PAYING' I S FOR THE PURPOSE OF SEC. 190 TO SEC. 203AA AND SEC. 285 OF THE ACT, THIS PHRAS E DOES NOT COVER SEC. 234E CONSEQUENTLY, NO ONE IS RESPONSIBLE FOR DEFAULT U/S 234E OF THE ACT & NONE CAN BE HELD RESPONSIBLE TO DEPOSIT IT. SINCE NO O NE IS HELD RESPONSIBLE TO DEPOSIT LATE FEES U/S 234E HENCE, ORDER PASSED U/ S 200A LEVYING LATE FEES U/S 234E IS LIABLE TO BE QUASHED. 3. RELIEF SOUGHT; IN VIEW OF THE ABOVE SUBMISSION, THE LEVY OF LATE FE E U/S. 234E OF THE ACT IS NOT IN ACCORDANCE WITH THE LAW AND IS LIABLE TO BE DEL ETED ALONG WITH INTEREST CHARGED THEREUPON. 10. PER CONTRA LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 11. UPON CAREFUL CONSIDERATION WE FIND THAT HIGHER COURT INCLUDING THAT FROM HON'BLE KARNATAKA HIGH COURT HAVE HELD THAT PRIOR T O AMENDMENT W.E.F. 1.6.2015 INTEREST UNDER SECTION 234E COULD NOT BE L EVIED. IT IS UNDISPUTED THAT PERIOD OF TDS RETURN IS PRIOR TO THE AMENDMENT. AT THAT TIME THERE WAS NO ENABLING PROVISION FOR LEVYING INTEREST UNDER SECTI ON 234E. SEVERAL DECISIONS FROM HIGH COURTS AND ITAT WERE REFERRED BEFORE LEAR NED CIT(A). DESPITE THIS THE LEARNED CIT(A)S RULES THAT THERE IS NO AMBIGUI TY IN LAW AND HE UPHOLDS THE ORDER OF INTEREST LEVY. THERE IS NO JURISDICTIONAL HIGH COURT DECISION ON THIS ISSUE. NO EFFORT HAS BEEN DONE BY LEARNED CIT(A) TO DISTINGUISH THE CASE LAW OF VEGETABLES PRODUCTS LTD. (SUPRA) FROM HON'BLE SUPRE ME COURT CITED BEFORE HIM. THE SAID CASE LAW PROVIDES THAT IF TWO VIEWS ARE PO SSIBLE THE VIEW IN FAVOUR OF ROSE ROCK REAL ESTATE INDIA PVT. LTD. 15 THE ASSESSEE HAS TO BE ADOPTED. HENCE, IF AS PER LE ARNED CIT(A) THERE ARE DIVERGENT VIEWS OF HON'BLE HIGH COURTS, IN ABSENCE OF A JURISDICTIONAL HIGH COURT DECISION, THE LEARNED CIT(A) SHOULD HAVE FOLL OWED THE RATIO FROM THIS HON'BLE SUPREME COURT DECISION AND FOLLOWED THE HI GH COURT DECISION IN FAVOUR OF THE ASSESSEE. IN OUR OPINION LEARNED CIT (A) HAS ENGAGED IN JUDICIAL INDISCIPLINE AND HIS APPROACH AND ORDER CANNOT BE C OUNTENANCED. FURTHER WE MAY REFER TO THE PENULTIMATE PARA OF LEARNED CIT(A) ORDER :- THE APPELLANT'S ANOTHER PLEA THAT THE REJECTION OF ORD ER U/S 154 OF THE ASSESSEE BY THE AO IS BAD IN LAW AS LAW IN THIS RESPE CT WAS VERY CLEAR. HOWEVER, IT IS CLEARLY APPARENT THAT WHERE ON AN ISSUE THE TWO HIGH COURTS ARE GIVING DIVERGENT OPINIONS, THE ISSUE IS DEFINITELY DEBATABLE AND CANNOT BE CONSIDERED AS AN APPARENT MISTAKE FROM THE RECORD. TH US, THE REJECTION BY THE AO IS AS PER LAW AND HENCE THIS PLEA OF DELETION OF DEMAND U/S 234E BY THE AO CANNOT BE ENTERTAINED AT THE TIME OF PASSING AN O RDER U/S 154. HENCE, ON THIS GROUND, THE AO'S ORDER IS UPHELD. 12. SINCE LEARNED CIT(A) HIMSELF SAYS, THAT THE ISS UE IS DEBATABLE THEN THE SAME TAKES THE ADJUSTMENT OUT OF THE JURISDICTION O F CPC BANGALORE. AS DEBATABLE ISSUES CANNOT BE DECIDED UNDER COMPUTERIS ED ADJUSTMENT. HENCE TO CONCLUDE SINCE IT HAS BEEN HELD BY HIGHER COURTS THAT PRIOR TO ENABLING PROVISION TO LEVY INTEREST UNDER SECTION 234E, THE INTEREST FOR EARLIER PERIOD RETURN DUE CANNOT BE UPHELD WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND DECIDE THE ISSUE IN FAVOUR OF ASSESSEE. 12. IN THE RESULT, THESE APPEALS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 2.9.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAM IM YAHYA) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI; DATED : 2/9/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI ROSE ROCK REAL ESTATE INDIA PVT. LTD. 16 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI