NATIONAL LAMINATE CORPORATION, MUMBAI V. CPC (TDS), MUMBAI

ITA 4902/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1755 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 20-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIKLD
• Keywords: Capital asset; Charitable institution; Retrospective amendment; Question of law; Difference of opinion; TDS; Set aside
• Section: 234E; 200A; 201; 2(A); 73; 13; 32; 154; 139

Judgement Text

ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.4902/MUM/2018 ( / ASSESSMENT YEAR : 2013-14 ) NATIONAL LAMINATE CORPORATION 209, SANGAM ARCADE VALLABH BHAI ROAD VILE PARLE (W), MUMBAI-400 056 / VS. ITO - CPC ( TDS) AAYKAR BHAVAN 3, VAISHALI GAZIABAD UTTAR PRADESH-201 010. $% ./ ./PAN/TAN AAGFN-7291-Q / MUMN-15953-A ( %' /APPELLANT ) : ( ()%' / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : MS. KAVITA P. KAUSHIK LD. DR / DATE OF HEARING : 28/11/2019 / DATE OF PRONOUNCEMENT : 10/12/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1.1 AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEA R [IN SHORT REFERRED TO AS AY] 2013-14 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-60, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-60/IT-492/CPC(TDS)RG-2/2013-14 DA TED 04/06/2018 ON FOLLOWING GROUNDS OF APPEAL: - ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW THE COMMISSIONER OF INCOME TAX (A) [CIT-A] ERRED IN NOT APPRECIATING A FACT THAT THE ASSESSING OFFICER (AO) HAS LEVIED THE LATE FEES WITHOUT ANY AUTHORITY UNDER LAW. THE APPELLANT PRAYS THAT THE LATE FEES LEVIED BY THE AO BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW CIT-A ERRED IN UPHOLDING THE LEVY OF FEES AND DISMISSING THE APPEA L OF THE APPELLANT WITHOUT APPRECIATING A FACT THAT THE DECISION OF HON'BLE KA RNATAKA HIGH COURT IN THE CASE OF SHREE AYAPPA EDUCATIONAL CHARITABLE TRUST (WRIT PET ITION 618/2015) WAS DTD. 12 TH DECEMBER, 2017, WHICH IS SUBSEQUENT TO THE DECISION OF GUJARAT HIGH COURT DTD. 20 TH JUNE, 2017 AND AS PER THE JUDICIAL DISCIPLINE OF OU R COUNTRY, IT HAS A BINDING EFFECT AND APPLICABLE TO APPELLANT. THE ACTION OF LEARNED CIT-A IS AGAINST THE PROVISION OF JUDICIAL SYSTEM OF OUR COUNTRY AND IS BAD IN LAW. T HE APPELLANT PRAYS THAT THE LATE FILING FEES LEVIED BY ASSESSING OFFICER U/S 234E BE DELETED. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW CIT-A ERRED IN NOT FOLLOWING THE JUDGMENT OF HIGH COURT AND DISMISSING THE APPEAL WITH A REMARK THAT 'HON'BLE MUMBAI TRIBUNAL HAS ALSO NOT PASSED ANY DE CISION WHERE THE LATEST DECISION OF HON'BLE GUJARAT HIGH COURT HAS BEEN CON SIDERED.' THE ACTION OF CIT-A IN NOT FOLLOWING THE JUDGMENT OF APEX COURT AND THE HI GH COURT WITH SUCH REMARK IS DEROGATORY AND AGAINST THE JUDICIAL DISCIPLINE OF O UR COUNTRY. THE APPELLANT PRAYS THAT THE DECISION OF THE CIT-A BE SET ASIDE AND LATE FEE S CHARGED BY ASSESSING OFFICER BE DELETED. 1.2 WHEN THE APPEAL WAS CALLED FOR HEARING, NONE AP PEARED FOR ASSESSEE AND HENCE, THE MATTER WAS PROCEEDED WITH E X-PARTE QUA THE ASSESSEE AFTER CONSIDERING MATERIAL ON RECORD AND A FTER HEARING LEARNED DEPARTMENTAL REPRESENTATIVE WHO SUPPORTED THE STAND OF LD. CIT(A) IN THE IMPUGNED ORDER. 1.3 FACTS ON RECORD WOULD REVEAL THAT THAT IN INTIM ATIONS U/S 200A OF THE INCOME TAX ACT, 1961 RECEIVED FROM AO-TDS CPC, VAIS HALI, GHAZIABAD FOR Q-2 TO Q-4 FOR AY 2013-14, THE ASSESSEE WAS SAD DLED WITH LATE FILING FEES U/S 234E FOR RS.45,600/- FOR Q-2, RS.31,000/- FOR Q-3 AND RS.8,600/- FOR Q-4. THE SAID FEES WERE LEVIED ON AC COUNT OF LATE FILING OF QUARTERLY ELECTRONIC TDS RETURNS, AS PROVIDED U/S 2 00(3) OF THE ACT READ WITH RULE 31A OF THE INCOME TAX RULES. 2.1 THE ASSESSEE CHALLENGED THE LEVY OF FEES U/S 23 4E BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 04/06/2018, INTER- ALIA, BY SUBMITTING ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 3 THAT THE PROVISIONS OF LEVY OF LATE FILING FEES U/S 234E OF THE ACT AS INTRODUCED W.E.F. 01/07/2012 COULD NOT BE READ IN I SOLATION AND WERE REQUIRED TO BE READ WITH THE MECHANISM AND THE MODE PROVIDED FOR ITS ENFORCEMENT WHICH WAS GOVERNED BY SEC. 200A OF THE ACT. THE AMENDMENT IN SEC. 200A(1) DEALING WITH LEVY AND COM PUTATION OF LATE FEES WAS INTRODUCED ONLY W.E.F. 01/06/2015 AND THE SAME WERE TO APPLY PROSPECTIVELY AND HENCE, NO LATE FILING FEES WAS AP PLICABLE FOR ANY PERIOD PRIOR TO 01/06/2015. RELIANCE WAS PLACED ON THE DEC ISION OF HONBLE KARNATAKA HIGH COURT RENDERED IN FATEHRAJ SINGHVI V/S UNION OF INDIA (73 TAXMANN.COM 252 26/08/2016) FOR THE SAID SUBMISSIONS. IT WAS ALSO SUBMITTED THAT THIS DECISION WAS FOLLOWED BY MUMBAI TRIBUNAL IN SEVERAL CASES, FEW OF WHICH HAVE ALREADY BEEN ENUMERATED IN THE IMPUGNED ORDER. THIS DECISION OF HONBLE KARNATAKA HIGH COUR T WAS STATED TO BE FOLLOWED IN BY SAME COURT IN ITS SUBSEQUENT DECISIO N DATED 12/12/2017 RENDERED IN WRIT PETITION NO. 618/2015 FILED BY SHREE AYAPPA EDUCATIONAL CHARITABLE TRUST . HOWEVER, IT WAS ALSO POINTED OUT THAT THERE WAS A CONFLICTING DECISION BY HONBLE GUJARAT HIGH COURT IN RAJESH KOURANI V/S UNION OF INDIA (297 CTR 502 20/06/2017) WHEREIN IT WAS HELD THAT SECTION 234E WAS A CHARGING PROVISION CRE ATING A CHARGE FOR LEVY OF FEES FOR DEFAULTS IN FILING OF TDS STATEMEN TS AND THE SAME COULD BE LEVIED EVEN WITHOUT A REGULATORY PROVISION BEING FOUND IN SECTION 200A FOR COMPUTATION OF FEES. IN THE ABOVE BACKGROU ND, IT WAS SUBMITTED THAT IN CASE OF CONFLICTING JUDGEMENT OF TWO NON-JU RISDICTIONAL HIGH COURTS, THE VIEW FAVORABLE TO THE ASSESSEE SHOULD B E TAKEN IN TERMS OF THE DECISION OF HONBLE SUPREME COURT RENDERED IN CIT V/S VEGETABLE PRODUCTS LTD. (1972 88 ITR 192). ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 4 2.2 THE LEARNED CIT(A), GOING BY THE LAW OF STARE D ECISIS AS EXPLAINED BY HONBLE BOMBAY HIGH COURT IN CIT V/S THANA ELECTRIC SUPPLY LTD. (206 ITR 727) CONCLUDED THAT IN CASE OF CONFLICTING DECISIONS OF CO- ORDINATE JURISDICTION, THE LATER DECISION IS TO BE PREFERRED IF IT WAS REACHED AFTER FULL CONSIDERATION OF THE EARLIER DECISIONS A ND THEREFORE, UPHELD THE LEVY OF FEES U/S 234E. SINCE THE DECISION OF HONBL E GUJARAT HIGH COURT WAS LATER IN POINT OF TIME AND RENDERED AFTER CONSI DERATION OF EARLIER CONFLICTING DECISIONS, THE SAME WAS TO BE FOLLOWED, AS PER THE AFORESAID PRINCIPAL. HENCE, THE ASSESSEES PLEA WAS REJECTED AND THE LATE FILING FEES CHARGED BY REVENUE U/S 234E WAS UPHELD. AGGRIE VED, THE ASSESSEE IS UNDER FURTHER APPEAL BEFORE US CHALLENGING THE A FORESAID ADJUDICATION. 3.1 UPON CAREFUL CONSIDERATION, WE FIND THAT THE PR OVISIONS OF SECTION 234E, AS INSERTED BY FINANCE ACT 2012 W.E.F. 01/07/ 2012, ENVISAGES LEVY OF FEES @RS.200/- FOR EVERY DAY OF DEFAULT ON THE P ART OF THE ASSESSEE TO DELIVER THE STATEMENT OF TDS WITHIN THE TIME PRESCR IBED U/S 200(3) OR SECTION 206C(3). SECTION 200A DEAL WITH PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE. A CLAUSE (C) HAS BEEN INSERTED INTO THIS SECTION BY FINANCE ACT, 2015 WITH EFFECT FROM 01/06/2015 WHICH PROVIDE THAT THE FEES, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E. 3.2 THE CASE OF THE ASSESSEE IS THAT SINCE THE AMEN DMENT TO SECTION 200A BY WAY OF INSERTION OF CLAUSE (C) IS ONLY WITH EFFECT FROM 01/06/2015, NO FEES WOULD BE PAYABLE BY THE ASSESSE E FOR ANY PERIOD PRIOR TO 01/06/2015 AS HELD BY HONBLE KARNATAKA HI GH COURT IN FATEHRAJ SINGHVI V/S UNION OF INDIA (73 TAXMANN.COM 252 26/0 8/2016) WHICH HAS SUBSEQUENTLY BEEN FOLLOWED BY SAME COURT WHILE ADJUDICATING WRIT ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 5 PETITION NO. 618/2015 FILED BY SHREE AYAPPA EDUCATIONAL CHARITABLE TRUST . THE RELEVANT OBSERVATIONS OF HONBLE KARNATAKA, F OR EASE OF REFERENCE, COULD BE EXTRACTED IN THE FOLLOWING MANN ER: - 6. WE HAVE HEARD LEARNED SENIOR COUNSEL MR.KUMAR AND M R.A.SHANKAR, APPEARING FOR THE APPELLANTS AND MR.K.V.ARAVIND, LEARNED COUN SEL APPEARING FOR INCOME TAX DEPARTMENT. 7. WE MAY AT THE OUTSET RECORD THAT, LEARNED COUNSEL A PPEARING FOR BOTH SIDES HAVE MADE SUBMISSIONS WHICH SHALL BE DEALT WITH APPROPRI ATELY AT THE LATER STAGE. BUT, IN ORDER TO APPRECIATE THE CONTROVERSIES INCLUDING THA T OF THE BACKGROUND, CERTAIN ASPECTS DESERVE TO BE TAKEN NOTE OF WHICH ARE AS UN DER: 8. AS PER SECTION 200(3) OF THE ACT READ WITH RULE 31A OF THE INCOME TAX RULES, 1962 (HEREINAFTER REFERRED TO AS 'RULES') A TAX DED UCTOR IS REQUIRED TO FILE QUARTERLY STATEMENT OF SUCH TAXES DEDUCTED AT SOURCE BY HIM A S TDS AND FOR THE PERIOD IN QUESTION, THE RELEVANT DATES FOR FILING OF SUCH STA TEMENT IS AS FOLLOWS: ( I ) 30TH JUNE - 15TH JULY OF THE FINANCIAL YEAR; ( II ) 30TH SEPTEMBER - 15TH OCTOBER OF THE FINANCIAL YEAR ; ( III ) 31ST DECEMBER - 15TH JANUARY OF THE FINANCIAL YEAR; AND ( IV ) 31ST MARCH - 15TH MAY OF THE FOLLOWING FINANCIAL YE AR. 9. IT MAY BE RECORDED THAT SECTION 200(3) REQUIRING TO FILE FORMAL TDS STATEMENT WITHIN THE AFORESAID EACH QUARTER WAS INSERTED ON 1 .4.2005 AND AT THE RELEVANT POINT OF TIME, SECTION 272A(2)(K) PROVIDED FOR THE PENALT Y OF RS.100/- PER DAY FOR EACH DAY OF DEFAULT IN FILING TDS STATEMENT AND SUCH PROVISI ON ALSO CAME TO BE INSERTED WITH EFFECT FROM 1.4.2005. ON 1.4.2010, SECTION 200A WAS INSERTED PROVIDING FOR THE PROCESSING OF THE TDS STATEMENT AND THE CONSEQUENT ISSUANCE OF THE INTIMATION TO THE DEDUCTOR, THE SAME DETERMINED AS PAYABLE BY IT OR REFUNDABLE BY IT. BUT, THE RELEVANT ASPECT IS THAT, IN INITIAL PROVISIONS OF S ECTION 200A, THERE WAS NO REFERENCE FOR FEE PAYABLE UNDER SECTION 234E. 10. ON 1.7.2012, SECTION 234E PROVIDING FOR LEVYING OF FEE OF RS.200/- PER DAY FOR EACH DAY OF DEFAULT IN FILING TDS STATEMENT WAS INS ERTED. SECTION 234E FOR READY REFERENCE IS REPRODUCED AND THE SAME READS AS UNDER : 'FEE FOR DEFAULT IN FURNISHING STATEMENTS. 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-SE CTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDR ED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE MAY BE. ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 6 (3) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANC E WITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SE CTION 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-SE CTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX D EDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTE R THE 1ST DAY OF JULY, 2012.' 11. SIMILARLY, SECTION 271H WAS INSERTED WITH EFFECT F ROM 1.7.2012 PROVIDING FOR IMPOSITION OF PENALTY FOR DEFAULT IN FILING TDS STA TEMENT AND ALSO FOR FURNISHING OF INCORRECT INFORMATION IN SUCH TDS STATEMENT. THE PR OVISO WAS INSERTED IN SECTION 272A PROVIDING FOR NO PENALTY UNDER THE SAID SECTIO N WILL BE IMPOSED AFTER 1.7.2012 FOR FAILURE TO FILE TDS STATEMENT ON TIME POSSIBLY BECAUSE A SEPARATE SECTION 271H WAS INSERTED IN THE ACT. SECTION 271H WILL BE RELEV ANT FOR OUR PURPOSE AND SAME FOR READY REFERENCE IS REPRODUCED AND IT READS AS UNDER : 'PENALTY FOR FAILURE TO FURNISH STATEMENTS, ETC. 271H. (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, [THE ASSESSING OFFICER MAY DIRECT THAT A PERSON SHALL PAY BY WAY OF] PENALTY, IF, HE ( A ) FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEME NT WITHIN THE TIME PRESCRIBED I N SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SU B-SECTION (3) OF SECTION 206C; OR ( B ) FURNISHES INCORRECT INFORMATION IN THE STATEMENT WHICH IS REQUIRED TO BE DELIVERED OR CAUSED TO BE DELIVERED UNDER SUB SECTION (3) OF SEC TION 200 OR THE PROVISO TO SUB- SECTION (3) OF SECTION 206C. (2) THE PENALTY REFERRED TO IN SUB-SECTION (1) SHAL L BE A SUM WHICH SHALL NOT BE LESS THAN TEN THOUSAND RUPEES BUT WHICH MAY EXTEND TO ON E LAKH RUPEES. (3) NOTWITHSTANDING ANYTHING CONTAINED IN THE FOREG OING PROVISIONS OF THIS SECTION, NO PENALTY SHALL BE LEVIED FOR THE FAILURE REFERRED TO IN CLAUSE ( A ) OF SUB-SECTION (1), IF THE PERSON PROVES THAT AFTER PAYING TAX DEDUCTED OR COLLECTED ALONG WITH THE FEE AND INTEREST, IF ANY, TO THE CREDIT OF THE CENTRAL GOVERNMENT, HE HAD DELIVERED OR CAUSE TO BE DELIVERED THE STATEMENT REFERRED TO IN SUB SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C BEFO RE THE EXPIRY OF A PERIOD OF ONE YEAR FROM THE TIME PRESCRIBED FOR DELIVERING OR CAU SING TO BE DELIVERED SUCH STATEMENT. (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 SE CTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX D EDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTE R THE 1ST DAY OF JULY, 2012.' 12. ON 1.6.2015, CLAUSES (C) TO (F) CAME TO BE SUBSTIT UTED UNDER SECTION 200A PROVIDING THAT THE FEE UNDER SECTION 234E CAN BE CO MPUTED AT THE TIME OF PROCESSING OF THE RETURN AND THE INTIMATION COULD B E ISSUED SPECIFYING THE SAME PAYABLE BY THE DEDUCTOR AS FEE UNDER SECTION 234E O F THE ACT. SECTION 200A WOULD ALSO BE RELEVANT IN THE PRESENT MATTER. HENCE, THE SAME FOR READY REFERENCE IS REPRODUCED AS UNDER: ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 7 'PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE . 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE 69 [OR A CORRECTION STATEMENT] HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH S TATEMENT SHALL 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 BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; ( C ) THE FEE, IF ANY, SHALL BE COMPUT ED 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 CLA USE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID 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 PURSUAN CE OF THE DET ERMINATION 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 FINANCIAL YEAR IN WHIC H THE STATEMENT IS FILED. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORREC T CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHALL 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 OT HER ITEM IN SUCH STATEMENT; ( II ) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOURCE, W HERE SUC H 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 PROCESSING OF STA TEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE B Y, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION.' 13. WHEN THE RETURNS FOR TDS FILED BY THE RESPECTIVE A PPELLANT-PETITIONERS WERE PROCESSED IN PURPORTED EXERCISE OF THE POWER UNDER SECTION 200A, THE AMOUNT OF FEE UNDER SECTION 234E IS COMPUTED AND DETERMINED. THE DEMAND IS MADE AND THE ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 8 INTIMATION GIVEN UNDER SECTION 200A INCLUDES THE CO MPUTATION AND THE DETERMINATION OF THE FEE PAYABLE BY THE APPELLANT-PETITIONERS. 14. WE MAY NOW DEAL WITH THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE APPELLANTS. THE FIRST CONTENTION FOR ASSAILING THE LEGALITY AND VALIDITY OF THE INTIMATION UNDER SECTION 200A WAS THAT, THE PROVISION OF SECTI ON 200A(1)(C), (D) AND (F) HAVE COME INTO FORCE ONLY WITH EFFECT FROM 1.6.2015 AND HENCE, THERE WAS NO AUTHORITY OR COMPETENCE OR JURISDICTION ON THE PART OF THE CONCE RNED OFFICER OR THE DEPARTMENT TO COMPUTE AND DETERMINE THE FEE UNDER SECTION 234E IN RESPECT OF THE ASSESSMENT YEAR OF THE EARLIER PERIOD AND THE RETURN FILED FOR THE SAID RESPECTIVE ASSESSMENT YEARS NAMELY ALL ASSESSMENT YEARS AND THE RETURNS P RIOR TO 1.6.2015. IT WAS SUBMITTED THAT, WHEN NO EXPRESS AUTHORITY WAS CONFE RRED BY THE STATUTE UNDER SECTION 200A PRIOR TO 1.6.2015 FOR COMPUTATION OF A NY FEE UNDER SECTION 234E NOR THE DETERMINATION THEREOF, THE DEMAND OR THE INTIMA TION FOR THE PREVIOUS PERIOD OR PREVIOUS YEAR PRIOR TO 1.6.2015 COULD NOT HAVE BEEN MADE. 15. WHEREAS, THE LEARNED COUNSEL APPEARING FOR THE RES PONDENT-DEPARTMENT MADE TWO FOLD SUBMISSIONS; 16. ONE WAS THAT, BY VIRTUE OF SECTION 234E, THE LIABI LITY TO PAY FEE HAD ALREADY ACCRUED SINCE THERE WAS FAILURE TO SUBMIT RETURN EI THER UNDER SECTION 200(3) OF THE ACT OR UNDER SECTION 206C (3) OF THE ACT. SECTION 2 34E CAN BE SAID AS A CHARGING SECTION GENERATING THE LIABILITY TO PAY THE FEE THE REFORE, IRRESPECTIVE OF A FACT OR THE ASPECT THAT SUB-SECTIONS (1C), (1D), 1(E) & (1F) WE RE INSERTED BY WAY OF SUBSTITUTION IN SECTION 200A, WHEN THE FEE WAS PAYABLE THE AFORESAI D INSERTION OF THE AFORESAID CLAUSE AND SECTION 200A (1) (C), (D), (E) AND (F) W OULD NOT RESULT INTO NULLIFYING THE LIABILITY TO PAY FEE UNDER SECTION 234E OF THE ACT. HENCE, IN HIS SUBMISSION, IT CANNOT BE SAID THAT THE DEMAND OR THE INTIMATION BY WAY OF COMPUTATION OF THE FEE UNDER SECTION 234E IS INVALID OR UNWARRANTED OR IS WITHOU T JURISDICTION. 17. THE EXAMINATION OF THE AFORESAID CONTENTIONS SHOW THAT, SECTION 234E HAS COME INTO FORCE ON 1.7.2012. THEREFORE, ONE MAY AT THE F IRST BLUSH SAY THAT, SINCE SECTION 234E IS A CHARGING SECTION FOR FEE, THE LIABILITY W AS GENERATED OR HAD ACCRUED, IF THERE WAS FAILURE TO DELIVER OR CAUSE TO BE DELIVER ED THE STATEMENT/S OF TDS WITHIN THE PRESCRIBED TIME. BUT, IN OUR VIEW, SECTION 234E CANNOT BE READ IN ISOLATION AND IS REQUIRED TO BE READ WITH THE MECHANISM AND THE MODE PROVIDED FOR ITS ENFORCEMENT. AS OBSERVED BY US HEREINABOVE, WHEN SECTION 234E WA S INSERTED IN THE ACT SIMULTANEOUSLY, SECTION 271H WAS ALSO INSERTED IN T HE ACT PROVIDING FOR THE PENALTY FOR FAILURE OF FURNISHING OF STATEMENTS ETC. THEREF ORE, IF THERE WAS FAILURE TO SUBMIT THE STATEMENT FOR TDS AS PER SECTION 234E, THE FEE PAYA BLE IS PROVIDED BUT THE MECHANISM PROVIDED WAS THAT IF THERE WAS FAILURE TO FURNISH STATEMENTS WITHIN THE PRESCRIBED DATE, THE PENALTY UNDER SECTION 271H (1) AND (2) COULD BE IMPOSED. HOWEVER, UNDER SUB-SECTION (3) OF SECTION 271H, THE EXCEPTION IS PROVIDED THAT NO PENALTY SHALL BE LEVIED FOR THE FAILURE REFERRED TO UNDER CLAUSE (A) OF SUB-SECTION (1) IF THE PERSON PROVES THAT AFTER PAYING TDS WITH THE FE E AND INTEREST THE AMOUNT IS CREDITED AND HE HAD DELIVERED OR CAUSED TO DELIVER THE STATEMENT WITHIN ONE YEAR FROM THE TIME PRESCRIBED FOR SUBMISSION OF THE SAID STATEMENT. TO PUT IT IN OTHER WORDS, FOR FAILURE TO SUBMIT THE STATEMENTS, THE PE NALTY PROVIDED UNDER SECTION 271(1)(A) CANNOT BE IMPOSED IF THE DEDUCTOR COMPLIE S WITH THE REQUIREMENT OF SUB- ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 9 SECTION (3) OF SECTION 271H. HENCE, IT CAN BE SAID THAT THE FEE PROVIDED UNDER SECTION 234E WOULD TAKE OUT FROM THE RIGORS OF PENA LTY UNDER SECTION 271H BUT OF COURSE SUBJECT TO THE OUTER LIMIT OF ONE YEAR AS PR ESCRIBED UNDER SUB-SECTION (3) OF SECTION 271H. IT CAN ALSO BE SAID THAT WHEN THE PAR LIAMENT INTENDED TO INSERT THE PROVISIONS OF SECTION 234E PROVIDING FOR FEE SIMULT ANEOUSLY THE UTILITY OF SUCH FEE WAS FOR CONFERRING THE PRIVILEGE TO THE DEFAULTER-D EDUCTOR TO COME OUT FROM THE RIGORS OF PENAL PROVISION OF SECTION 271H. BE IT RECORDED THAT, PRIOR TO SECTION 271H OF THE ACT INSERTED IN THE STATUTE BOOK, THE ENFORCEABILIT Y OF REQUIREMENT TO FILE RETURN UNDER SECTION 200(3) AND SECTION 206C(3) WAS BY VIRTUE OF SECTION 272A(2)(K) OF THE ACT WHICH PROVIDED FOR THE PENALTY OF RS.100/- PER DAY FOR EACH DAY OF DEFAULT IN FILING TDS STATEMENTS. BUT, WHEN SECTION 234E WAS INSERTED WITH EFFECT FROM 1.7.2012 SIMULTANEOUSLY, A SECOND PROVISO WAS ADDED UNDER SE CTION 272A(2) WITH EFFECT FROM 1.7.2012 AS UNDER: 'PENALTY FOR FAILURE TO ANSWER QUESTIONS, SIGN STAT EMENTS, FURNISH INFORMATION, RETURNS OR STATEMENTS, ALLOW INSPECTIO NS, ETC. 272A. (1)** ** ** (2) IF ANY PERSON FAILS ( A ) TO COMPLY WITH A NOTICE ISSUED UNDER SUB-SECTION (6 ) OF SECTION 94; OR ( B ) TO GIVE THE NO TICE OF DISCONTINUANCE OF HIS BUSINESS OR PROFESSIO N AS REQUIRED BY SUB-SECTION (3) OF SECTION 176; OR ( C ) TO FURNISH IN DUE TIME ANY OF T HE RETURNS, STATEMENTS OR PARTICULARS MENTIONED IN SECTION 133 OR SECTION 206 OR SECTION 206C OR SECTI ON 285B; OR ( D ) TO ALLOW INSPECTION OF ANY REGISTER REFERRED TO IN SECTION 134 OR OF ANY ENTRY IN SUCH REGISTER OR TO ALLOW COPIES OF SUCH REGISTER OR OF ANY ENTRY THEREIN TO BE TAKEN; OR ( E ) TO FURNISH THE RETURN OF INCOME WHICH HE IS REQUIRE D TO FURNISH UNDER SUB- SECTION (4A) OR SUB-SECTION (4C) OF SECTION 139 OR TO FURNI SH IT WITHIN THE TIME ALLOWED AND IN THE MANNER REQUIRED UNDER THOSE SUB-SECTIONS; OR ( F ) TO DELIVER OR CAUSE TO BE DELIVERED IN D UE TIME A COPY OF THE DECLARATION MENTIONED IN SECTION 197A; OR ( G ) TO FURNISH A CERTIFICATE AS REQUIRED BY SECTION 203 OR SECTION 206C; OR ( H ) TO DEDUCT AND PAY TAX AS REQUIRED BY SUB-SECTION (2 ) OF SECTION 226; ( I ) TO FURNISH A STATEMENT AS REQUIRED BY SUB-SECTION ( 2C) OF SECTION 192; ( J ) TO DELIVER OR CAUSE TO BE DELIVERED IN DUE TIME A C OPY OF THE DECLARATION REFERRE D TO IN SUB-SECTION (1A) OF SECTION 206C; ( K ) TO DELIVER OR CAUSE TO BE DELIVERED A COPY OF THE S TATEMENT WITHIN THE TIME S PECIFIED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C; ( L ) TO DELIVER OR CAUSE TO BE DELIVERED THE STATEMENTS WITHIN THE TIME SPECIFIED IN SUB- SECTION (1) OF SECTION 206A; ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 10 [( M ) TO DELIVER OR CAUSE TO BE DELIVERE D A STATEMENT WITHIN THE TIME AS MAY BE PRESCRIBED UNDER SUB-SECTION (2A) OF SECTION 200 OR SUB- SECTION (3A) OF SECTION 206C,] HE SHALL PAY, BY WAY OF PENALTY, A SUM OF ONE HUNDR ED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES: PROVIDED THAT THE AMOUNT OF PENALTY FOR FAILURES IN RELATION TO A DECLARATION MENTIONED IN SECTION 197A, A CERTIFICATE AS REQUIRE D BY SECTION 203 AND RETURNS UNDER SECTIONS 206 AND 206C AND 71 [STATEMENTS UNDER SUB-SECTION (2A) OR SUB SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SE CTION (3) OR UNDER SUB-SECTION (3A) OF SECTION 206C] SHALL NOT EXCEED THE AMOUNT O F TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE MAY BE: PROVIDED FURTHER THAT NO PENALTY SHALL BE LEVIED UN DER THIS SECTION FOR THE FAILURE REFERRED TO IN CLAUSE ( K ), IF SUCH FAILURE RELATES TO A STATEMENT REFERRED TO IN SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SE CTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX D EDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTE R THE 1ST DAY OF JULY, 2012. ** ** **' 18. THE AFORESAID SHOWS THAT IN THE CLAUSE (K) IF THE SAID FAILURE RELATES TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR THE SUB-SECTION (3) OF SECTION 206C, NO PENALTY SHALL BE IMPOSED FOR TDS A FTER 01.07.2012. 19. HENCE, IT CAN BE SAID THAT, THE MECHANISM PROVIDED FOR ENFORCEABILITY OF SECTION 200(3) OR 206C (3) FOR FILING OF THE STATEMENT BY M AKING IT PENAL UNDER SECTION 272A (2) (K) IS DONE AWAY IN VIEW OF THE INSERTION OF SE CTION 271H PROVIDING FOR PENAL PROVISION FOR SUCH FAILURE TO SUBMIT RETURN. WHEN T HE PARLIAMENT HAS SIMULTANEOUSLY BROUGHT ABOUT SECTION 234E, SECTION 271H AND THE AF ORESAID PROVISO TO SECTION 272A(2), IT CAN BE SAID THAT, THE FEE PROVIDED UNDE R SECTION 234E IS CONTEMPLATED TO GIVE A PRIVILEGE TO THE DEFAULTER TO COME OUT FROM THE RIGORS OF PENALTY PROVISION UNDER SECTION 271H (1) (A) IF HE PAYS THE FEE WITHI N ONE YEAR AND COMPLIES WITH THE REQUIREMENT OF SUB-SECTION (3) OF SECTION 271H. 20. IN VIEW OF THE AFORESAID OBSERVATIONS AND DISCUSSI ON, TWO ASPECTS MAY TRANSPIRE ONE, FOR SECTION 234E PROVIDING FOR FEE AND GIVEN P RIVILEGE TO THE DEFAULTER IF HE PAYS THE FEE AND HENCE, WHEN A PRIVILEGE IS GIVEN FOR A PARTICULAR PURPOSE WHICH IN THE PRESENT CASE IS TO COME OUT FROM RIGORS OF PENAL PR OVISION OF SECTION 271H(1)(A), IT CANNOT BE SAID THAT THE PROVISIONS OF FEE SINCE CRE ATES A COUNTER BENEFIT OR RECIPROCAL BENEFIT IN FAVOUR OF THE DEFAULTER IN THE RIGORS OF THE PENAL PROVISION, THE PROVISIONS OF SECTION 234E WOULD MEET WITH THE TEST OF QUID PRO Q UO. 21. HOWEVER, IF SECTION 234E PROVIDING FOR FEE WAS BRO UGHT ON THE STATE BOOK, KEEPING IN VIEW THE AFORESAID PURPOSE AND THE INTEN TION THEN, THE OTHER MECHANISM PROVIDED FOR COMPUTATION OF FEE AND FAILURE FOR PAY MENT OF FEE UNDER SECTION 200A WHICH HAS BEEN BROUGHT ABOUT WITH EFFECT FROM 1.6.2 015 CANNOT BE SAID AS ONLY BY WAY OF A REGULATORY MODE OR A REGULATORY MECHANISM BUT IT CAN RATHER BE TERMED AS CONFERRING SUBSTANTIVE POWER UPON THE AUTHORITY. IT IS TRUE THAT, A REGULATORY MECHANISM BY INSERTION OF ANY PROVISION MADE IN THE STATUTE BOOK, MAY HAVE A ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 11 RETROACTIVE CHARACTER BUT, WHETHER SUCH PROVISION P ROVIDES FOR A MERE REGULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER UPON THE AUT HORITY WOULD ALSO BE A ASPECT WHICH MAY BE REQUIRED TO BE CONSIDERED BEFORE SUCH PROVISIONS IS HELD TO BE RETROACTIVE IN NATURE. FURTHER, WHEN ANY PROVISION IS INSERTED FOR LIABILITY TO PAY ANY TAX OR THE FEE BY WAY OF COMPENSATORY IN NATURE OR FEE INDEPENDENTLY SIMULTANEOUSLY MODE AND THE MANNER OF ITS ENFORCEABILITY IS ALSO R EQUIRED TO BE CONSIDERED AND EXAMINED. NOT ONLY THAT, BUT, IF THE MODE AND THE M ANNER IS NOT EXPRESSLY PRESCRIBED, THE PROVISIONS MAY ALSO BE VULNERABLE. ALL SUCH ASPECTS WILL BE REQUIRED TO BE CONSIDERED BEFORE ONE CONSIDERS REGULATORY ME CHANISM OR PROVISION FOR REGULATING THE MODE AND THE MANNER OF RECOVERY AND ITS ENFORCEABILITY AS RETROACTIVE. IF AT THE TIME WHEN THE FEE WAS PROVIDED UNDER SECT ION 234E, THE PARLIAMENT ALSO PROVIDED FOR ITS UTILITY FOR GIVING PRIVILEGE UNDER SECTION 271H(3) THAT TOO BY EXPRESSLY PUT BAR FOR PENALTY UNDER SECTION 272A BY INSERTION OF PROVISO TO SECTION 272A(2), IT CAN BE SAID THAT A PARTICULAR SET UP FOR IMPOSITION AND THE PAYMENT OF FEE UNDER SECTION 234E WAS PROVIDED BUT, IT DID NOT PROVIDE F OR MAKING OF DEMAND OF SUCH FEE UNDER SECTION 200A PAYABLE UNDER SECTION 234E. HENC E, CONSIDERING THE AFORESAID PECULIAR FACTS AND CIRCUMSTANCES, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LEARNED COUNSEL FOR RESPONDENT-REVENUE THAT INSERTI ON OF CLAUSE (C) TO (F) UNDER SECTION 200A(1) SHOULD BE TREATED AS RETROACTIVE IN CHARACTER AND NOT PROSPECTIVE. 22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PER TH E WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE, UNLESS IT IS EXPRESSLY P ROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE READ AS HAVING PR OSPECTIVE 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 200 A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARA CTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIM ATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED E XERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF TH E RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200 A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNL ESS HE HAS MADE PAYMENT UNDER PROTEST. 23. IN VIEW OF THE AFORESAID OBSERVATION AND DISCUSSIO N, SINCE THE IMPUGNED INTIMATION GIVEN BY THE RESPONDENT-DEPARTMENT AGAIN ST ALL THE APPELLANTS UNDER SECTION 200A ARE SO FAR AS THEY ARE FOR THE PERIOD PRIOR TO 1.6.2015 CAN BE SAID AS WITHOUT ANY AUTHORITY UNDER LAW. HENCE, THE SAME CA N BE SAID AS ILLEGAL AND INVALID. 24. IF THE FACTS OF THE PRESENT CASES ARE EXAMINED IN LIGHT OF THE AFORESAID OBSERVATION AND DISCUSSION, IT APPEARS THAT IN ALL MATTERS, THE INTIMATION GIVEN IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A ARE IN RESPECT OF FEES UNDER SECTION 234E FOR THE PERIOD PRIOR TO 1.6.2015. AS S UCH, IT IS ON ACCOUNT OF THE INTIMATION GIVEN MAKING DEMAND OF THE FEES IN PURPO RTED EXERCISE OF POWER UNDER SECTION 200A, THE SAME HAS NECESSITATED THE APPELLA NT-ORIGINAL PETITIONER TO CHALLENGE THE VALIDITY OF SECTION 234E OF THE ACT. IN VIEW OF THE REASONS RECORDED BY US HEREINABOVE, WHEN THE AMENDMENT MADE UNDER SECTI ON 200A OF THE ACT WHICH HAS COME INTO EFFECT ON 1.6.2015 IS HELD TO BE HAVI NG PROSPECTIVE EFFECT, NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR THE FEE UNDER SECTION 234E ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 12 COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTI VE ASSESSMENT YEAR PRIOR TO 1.6.2015. HENCE, THE DEMAND NOTICES UNDER SECTION 2 00A BY THE RESPONDENT- AUTHORITY FOR INTIMATION FOR PAYMENT OF FEE UNDER S ECTION 234E CAN BE SAID AS WITHOUT ANY AUTHORITY OF LAW AND THE SAME ARE QUASH ED AND SET ASIDE TO THAT EXTENT. 25. AS SUCH, AS RECORDED EARLIER, IT IS ON ACCOUNT OF THE INTIMATION RECEIVED UNDER SECTION 200A FOR MAKING COMPUTATION AND DEMAND OF F EES UNDER SECTION 234E, THE SAME HAS NECESSITATED THE APPELLANT TO CHALLENGE TH E CONSTITUTIONAL VALIDITY OF SECTION 234E. WHEN THE INTIMATION OF THE DEMAND NOT ICES UNDER SECTION 200A IS HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RE LATES TO COMPUTATION AND DEMAND OF FEE UNDER SECTION 234E, WE FIND THAT THE QUESTION O F FURTHER SCRUTINY FOR TESTING THE CONSTITUTIONAL VALIDITY OF SECTION 234E WOULD BE RE NDERED AS AN ACADEMIC EXERCISE BECAUSE THERE WOULD NOT BE ANY CAUSE ON THE PART OF THE PETITIONERS TO CONTINUE TO MAINTAIN THE CHALLENGE TO CONSTITUTIONAL VALIDITY U NDER SECTION 234E OF THE ACT. AT THIS STAGE, WE MAY ALSO RECORD THAT THE LEARNED COU NSELS APPEARING FOR THE APPELLANT HAD ALSO DECLARED THAT IF THE IMPUGNED NOTICES UNDE R SECTION 200A ARE SET ASIDE, SO FAR AS IT RELATES TO COMPUTATION AND INTIMATION FOR PAYMENT OF FEE UNDER SECTION 234E, THE APPELLANT-PETITIONERS WOULD NOT PRESS THE CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. BUT, THEY SUBM ITTED THAT THE QUESTION OF CONSTITUTIONAL VALIDITY OF SECTION 234E MAY BE KEPT OPEN TO BE CONSIDERED BY THE DIVISION BENCH AND THE JUDGMENT OF THE LEARNED SING LE JUDGE MAY NOT CONCLUDE THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. 26. UNDER THESE CIRCUMSTANCES, WE FIND THAT NO FURTHER DISCUSSION WOULD BE REQUIRED FOR EXAMINING THE CONSTITUTIONAL VALIDITY OF SECTIO N 234E OF THE ACT. SAVE AND EXCEPT TO OBSERVE THAT THE QUESTION OF CONSTITUTIONAL VALI DITY OF SECTION 234E OF THE ACT BEFORE THE DIVISION BENCH OF THIS COURT SHALL REMAI N OPEN AND SHALL NOT BE TREATED AS CONCLUDED. 27. IN VIEW OF THE AFORESAID OBSERVATIONS AND DISCUSSI ON, THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT FOR COMPUTATION AND I NTIMATION 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. IT IS CLARIFIED THAT THE PR ESENT JUDGMENT WOULD NOT BE INTERPRETED TO MEAN THAT EVEN IF THE PAYMENT OF THE FEES UNDER SECTION 234E ALREADY MADE AS PER DEMAND/INTIMATION UNDER SECTION 200A OF THE ACT FOR THE TDS FOR THE PERIOD PRIOR TO 01.04.2015 IS PERMITTED TO BE REOPE NED FOR CLAIMING REFUND. THE JUDGMENT WILL HAVE PROSPECTIVE EFFECT ACCORDINGLY. IT IS FURTHER OBSERVED THAT THE QUESTION OF CONSTITUTIONAL VALIDITY OF SECTION 234E SHALL REMAIN OPEN TO BE CONSIDERED BY THE DIVISION BENCH AND SHALL NOT GET CONCLUDED BY THE ORDER OF THE LEARNED SINGLE JUDGE. 28. THE APPEALS ARE PARTLY ALLOWED TO THE AFORESAID EX TENT. 3.3 ON THE OTHER HAND, THE CASE OF THE REVENUE WOUL D DERIVE STRENGTH FROM THE CONTRARY DECISION OF HONBLE GUJARAT HIGH COURT RENDERED IN RAJESH KOURANI V/S UNION OF INDIA (297 CTR 502 20/0 6/2017) WHEREIN ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 13 THE HONBLE COURT HAS DECLINED TO CONCUR WITH THE A FORESAID ADJUDICATION OF HONBLE KARNATAKA HIGH COURT, BY OBSERVING AS UN DER: - 2. BRIEF FACTS ARE AS UNDER. 3. THE PETITIONER IS A PROPRIETOR OF ONE M/S SAIBABA T EXTILES WHICH IS ENGAGED IN THE MANUFACTURE AND TRADING OF LADIES GARMENTS. IN COUR SE OF THE BUSINESS, THE PETITIONER WOULD MAKE PAYMENTS TO INDIVIDUALS AND AGENCIES, MA NY OF WHICH WOULD REQUIRE DEDUCTING TAX AT SOURCE. THE PROVISIONS UNDER THE A CT WOULD FURTHER REQUIRE THE PETITIONER TO FILE PERIODIC STATEMENTS OF SUCH TAX DEDUCTED AT SOURCE AND DEPOSITING THE TAX IN THE GOVERNMENT WITHIN THE TIME PRESCRIBE D. WITH EFFECT FROM 01.07.2012, SECTION 234E WAS INTRODUCED IN THE ACT FOR LEVYING FEE FOR DEFAULT IN FURNISHING THE STATEMENT OF TAX DEDUCTED OR COLLECTED AT SOURCE. A S PER RULE 31A OF THE RULES, THE PERSON RESPONSIBLE FOR DEDUCTION OF TAX IN TERMS OF SUB-SECTION (3) OF SECTION 200 WOULD HAVE TO FILE QUARTERLY STATEMENTS IN PRESCRIB ED FORM. SUB-RULE (2) OF RULE 31A PRESCRIBED DATES BY WHICH SUCH STATEMENTS WOULD HAV E TO BE FILED. 4. SECTION 200A OF THE ACT PERTAINS TO PROCESSING OF S TATEMENTS OF TAX DEDUCTED AT SOURCE. THIS PROVISION PROVIDES FOR PROCESSING THE STATEMENT FILED BY PERSON DEDUCTING THE TAX. PRIOR TO 01.06.2015, THIS PROVIS ION DID NOT CONTAIN ANY REFERENCE TO THE ADJUSTMENT OF FEE TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OF THE ACT. THIS PROVISION WAS MADE ONLY WITH EFFECT FROM 01.06.2015. 5. IN THE PETITION, THE PETITIONER HAS RAISED FOLLOWIN G THREEFOLD GRIEVANCES: I. THAT SECTION 234E OF THE ACT IS ULTRA-VIRES AND UNC ONSTITUTIONAL. II. RULE 31A OF THE RULES INSOFAR AS IT PRESCRIBES LONG ER PERIOD FOR THE GOVERNM ENT TO FILE THE STATEMENTS AS COMPARED TO THE OTHER ASSESS EES IS DISCRIMINATORY AND ARBITRARY AND THEREFORE UNCONSTITUTIONAL. III . PRIOR TO 01.06.2015, SECTION 200A DID NOT AUTHORIZE THE ASSESSING O FFICER TO MAKE ADJUSTMENT OF THE FEE TO BE LEVIED UNDER SECTION 23 4E OF THE ACT. THIS PROVISION INTRODUCED WITH EFF ECT FROM 01.03.2016 IS NOT RETROSPECTIVE AND THEREF ORE, FOR THE PERIOD BETWEEN 01.07.2002 I.E. WHEN SECTION 234E WA S INTRODUCED IN THE ACT AN D 01.06.2015 WHEN PROPER MECHANISM WAS PROVIDED UNDER SECTION 200A OF T HE ACT FOR COLLECTION OF FEE, THE DEPARTMENT COULD NOT HAV E CHARGED SUCH FEE. 6. APPEARING FOR THE PETITIONER, LEARNED ADVOCATE SHRI PARTH CONTRACTOR AT THE OUTSET, STATED THAT IN VIEW OF THE JUDGMENT OF THE BOMBAY H IGH COURT IN CASE OF RASHMIKANT KUNDALIA V. UNION OF INDIA [2015] 373 ITR 268/229 TAXMAN 596/54 TAXMANN.COM 200, HE HAS INSTRUCTIONS NOT TO PRESS THE CHALLENGE TO CONSTITUTIONALITY OF SECTION 234E OF THE ACT. HE HOWEVER MADE DETAILED SUBMISSIO NS WITH RESPECT TO THE OTHER TWO GRIEVANCES OF THE PETITIONER. REGARDING RULE 31 A OF THE RULES, HE POINTED OUT THAT THE LEGISLATURE HAS PRESCRIBED DIFFERENT TIME LIMITS FOR FILING STATEMENTS FOR THE GOVERNMENT AND THE REST OF THE ASSESSEES. THE SPECI AL CONCESSION TO THE GOVERNMENT AGENCIES WAS WHOLLY UNNECESSARY AND NOT BASED ON ANY RATIONAL. THE SAME DIFFICULTIES AND COMPLEXITIES WHICH ARE FACED BY GOVERNMENT AGENCIES WOULD ALSO BE FACED BY THE INDIVIDUAL ASSESSEES. ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 14 7. WITH RESPECT TO THE AMENDMENT IN SUB-SECTION (1) OF SECTION 200A, COUNSEL SUBMITTED THAT PRIOR TO SUCH AMENDMENT, THERE WAS N O MECHANISM PROVIDED UNDER THE ACT FOR COLLECTION OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSING OFFICER THEREFORE COULD NOT HAVE ADJUSTED SUCH FEE IN TERMS OF SECTION 200A OF THE ACT. COUNSEL DREW OUR ATTENTION TO AN INTIMATION SENT BY THE ASSESSING OFFICER, PURPORTED TO BE UNDER SECTION 200A OF THE ACT, IN WHICH, HE H AD ADJUSTED A SUM OF RS.33,123/- BY WAY OF LATE FILING FEE UNDER SECTION 234E OF THE ACT. COUNSEL RELIED ON A DECISION OF PUNE BENCH OF ITAT IN CASE OF GAJANAN CONSTRUCTIONS V. DY, CIT [2016] 73 TAXMANN.COM 380/161 ITD 313 (PUNE - TRIB.), IN WHIC H, THE TRIBUNAL HELD THAT PRIOR TO 01.06.2015, THE ASSESSING OFFICER WAS NOT EMPOWE RED TO CHARGE FEE UNDER SECTION 234E OF THE ACT. COUNSEL ALSO RELIED ON A D ECISION OF DIVISION BENCH OF KARNATAKA HIGH COURT IN CASE OF FATHERAJ SINGHVI V. UNION OF INDIA [2016] 73 TAXMANN.COM 252, IN WHICH, THE COURT HAS TAKEN A VI EW THAT THE AMENDMENT IN SECTION 200A WITH EFFECT FROM 01.06.2015 CANNOT HAV E RETROSPECTIVE EFFECT. 8. ON THE OTHER HAND LEARNED COUNSEL SHRI MANISH BHATT FOR THE DEPARTMENT OPPOSED THE PETITION CONTENDING THAT TWO DIFFERENT TIME LIM ITS FOR FILING STATEMENTS UNDER RULE 31A ARE FOR GOVERNMENT AND NONGOVERNMENT AGENCIES. LOOKING TO THE MULTILAYERED SYSTEM OF OPERATION OF THE GOVERNMENT AGENCIES AND OVERALL WORKLOAD, THE LEGISLATURE THOUGHT IT FIT TO GRANT 15 DAYS ADDITIO NAL TIME TO THE GOVERNMENT AGENCIES TO FILE THE STATEMENTS. THIS IS THEREFORE NOT A CAS E OF DISCRIMINATION, BUT A CASE OF REASONABLE CLASSIFICATION. 9. WITH RESPECT TO THE AMENDMENT IN SECTION 200A, COUN SEL SUBMITTED THAT THE CHARGING PROVISION IS SECTION 200E OF THE ACT. SECT ION 200A MERELY PROVIDES A MECHANISM. SUCH A PROVISION CANNOT GOVERN THE CHARG ING PROVISION. EVEN IN ABSENCE OF AMENDMENT IN SECTION 200A, THE ASSESSING OFFICER WAS ALWAYS AUTHORIZED TO LEVY FEE IN TERMS OF SECTION 200E OF THE ACT. AT BEST, THE AMENDMENT IN THE SAID PROVISION SHOULD BE SEEN AS CLARIFICATORY OR PROVIDING A MECHANISM WHICH TILL THEN WAS MISSING. COUNSEL REFERRED TO THE DECISION OF RAJASTHAN HIGH COURT IN CASE OF DUNDLOD SHIKSHAN SANSTHAN V. UNION OF INDIA [2015] 63 TAXMANN.COM 243/235 TAXMAN 446 (RAJ.), WHERE, IN THE CONTEXT OF CHALLEN GE TO THE VIRES TO THE SECTION 234E OF THE ACT, INCIDENTALLY THIS ISSUE ALSO CAME UP FOR CONSIDERATION. 10. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, WE M AY TAKE A CLOSER LOOK AT THE STATUTORY PROVISIONS APPLICABLE. SECTION 200 OF THE ACT PERTAINS TO DUTY OF THE PERSON DEDUCTING TAX AND IMPOSES A DUTY ON A PERSON DEDUCT ING TAX IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF CHAPTER-XVII TO PAY SUCH SU M TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE TIME PRESCRIBED. SUB-SECTION (3) OF SECTION 200 REQUIRES SUCH A PERSON TO PREPARE SUCH STATEMENTS FOR THE PRESCRI BED PERIODS AND TO FILE THE SAME WITHIN THE PRESCRIBED TIME. SECTION 200C OF THE ACT MAKES SIMILAR PROVISION FOR THE PERSON RESPONSIBLE FOR THE COLLECTION OF TAX AT SOU RCE TO DEPOSIT THE SAME WITH THE GOVERNMENT REVENUE AND TO FILE A STATEMENT WITHIN T HE PRESCRIBED TIME. 11. SECTION 200A OF THE ACT PERTAINS TO PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE. WE WOULD NOTICE THE PROVISIONS OF THIS SECT ION PRIOR TO 01.06.2015 AND THE CHANGES MADE THEREIN BY VIRTUE OF FINANCE ACT, 2015 , WITH EFFECT FROM 01.06.2015. FURTHER, WE WOULD TAKE NOTE OF PROVISIONS OF SECTIO N 234E OF THE ACT. FOR THE TIME BEING, WE MAY NOTICE THAT SECTION 200A PROVIDES FOR A MECHANISM FOR PROCESSING A ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 15 STATEMENT FILED UNDER SECTION 200 OF THE ACT AND EN ABLES THE ASSESSING OFFICER TO MAKE SOME ADJUSTMENTS AND TO INTIMATE THE FINAL OUT COME TO THE ASSESSEE. 12. SECTION 234E WHICH PERTAINS TO FEE FOR DEFAULT IN FURNISHING THE STATEMENTS WAS INTRODUCED FOR THE FIRST TIME BY THE FINANCE ACT, 2 012, WITH EFFECT FROM 01.07.2015. SECTION 234E READS AS UNDER: 'FEE FOR DEFAULT IN FURNISHING STATEMENTS. 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-SE CTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDR ED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB-SECTION (1 ) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE 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 STATEMENT IN ACCORDANC E WITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SE CTION 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-SEC TION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX D EDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTE R THE 1ST DAY OF JULY, 2012.' 13. WITH EFFECT FROM 01.07.2012, THE LEGISLATURE ALSO INTRODUCED SECTION 271H OF THE ACT PROVIDING PENALTY FOR FAILURE TO FURNISH STATEM ENTS REQUIRED TO BE FILED UNDER SUB- SECTION (3) OF SECTION 200 OR UNDER PROVISO TO SUB- SECTION (3) OF SECTION 206C OF THE ACT. AS PER SUB-SECTION (2) OF SECTION 271H IN CASE OF DEFAULT TO FILE THE STATEMENTS, THE ASSESSEE MAY BE LIABLE TO PENALTY OF NOT LESS T HAN RUPEES TEN THOUSAND BUT NOT MORE THAN RUPEES ONE LAKH. UNDER SUB-SECTION (3) OF SECTION 271H HOWEVER, SUCH PENALTY WOULD BE AVOIDED IF THE ASSESSEE PROVES THA T HE HAD PAID THE TAX DEDUCTED OR COLLECTED ALONGWITH INTEREST AND HE HAD FILED TH E NECESSARY STATEMENT WITHIN ONE YEAR FROM THE TIME PRESCRIBED FOR FILING SUCH STATE MENTS. WE MAY ALSO RECORD THAT CLAUSE (K) OF SUB-SECTION (2) OF SECTION 272A PROVI DES FOR PENALTY FOR FAILURE TO DELIVER THE STATEMENT WITHIN THE TIME SPECIFIED IN SUB-SECT ION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C AT A RAT E OF RUPEES ONE HUNDRED FOR EVERY DATE DURING WHICH THE FAILURE CONTINUES. HOWEVER, W ITH EFFECT FROM 01.07.2012, A PROVISO WAS ADDED LIMITING THE EFFECT OF THIS PROVI SION UPTO 01.07.2012. IN OTHER WORDS, AFTER 01.07.2012, THE PENALTY PROVISION OF S ECTION 271H WOULD APPLY IN SUCH CASES OF DEFAULTS. 14. SECTION 200A(1) OF THE ACT PRIOR TO 01.06.2015 PRO VIDED AS UNDER: SECTION 200A(1) ' PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE. 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 ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 16 SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEM ENT SHALL 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 DED UCTIBLE 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 UNDE R CLAUSE (B) AGAI NST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201, AND ANY AMOUN T PAID OTHERWISE BY WAY OF TAX OR INTEREST; ( D ) AN INTIMATION SHALL BE PREPARED OR GENERATED AND SE NT TO THE DEDUCTOR SPEC IFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE ( C ); AND ( E ) AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE O F THE DETERMINATION U NDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR: (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUAN CE OF THE DETERMINATION UN DER 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 FINANCIAL YEAR IN WHIC H THE STATEMENT IS FILED. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORREC T CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHALL 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, W HERE 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 PROCESSING OF STA TEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE B Y, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION.' WITH EFFECT FROM 01.06.2015, SUB-SECTION (1) OF SEC TION 200A WAS AMENDED. IN THE AMENDED FORM, THE SAME PROVISION READS AS UNDER: SECTION 200A(1) 'PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE . ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 17 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 STATEM ENT SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: ( A ) THE SUMS DEDUCTIBLE U NDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING TH E 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 C OMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; ( C ) THE FEE, IF ANY, SH ALL BE COMPUTE D IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E; ( D ) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DED UCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUS E (C) AGAINST ANY AMOUNT PAID UNDER SECTION 200 OR SE CTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTE REST OR FEE; ( E ) AN INTIMATION SHALL BE PREPARED O R 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 D EDUCTOR IN PURSUANCE 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 FINANCIAL YEAR IN WHIC H THE STATEMENT IS FILED. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORREC T CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHALL 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, W HERE SUCH RATE IS NOT I N 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 PROCESSING OF STA TEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE B Y, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION.' 15. IN VIEW OF SUCH STATUTORY PROVISIONS, WE MAY CONSI DER THE PETITIONER'S TWO CHALLENGES. COMING TO THE QUESTION OF DISCRIMINATOR Y NATURE OF RULE 31A OF THE RULES, IT CAN BE SEEN THAT SUB-RULE (1) OF RULE 31A OF THE RULES PROVIDES FOR FILING OF THE STATEMENTS IN PRESCRIBED FORMS AS REQUIRED UNDER SU B-SECTION (3) OF SECTION 200. ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 18 SUB-RULE (2) OF RULE 31A LAYS DOWN THE TIME LIMIT F OR FILING SUCH QUARTERLY STATEMENTS AND PROVIDES AS UNDER: ' (2) STATEMENTS REFERRED TO IN SUB-RULE (1) FOR THE QUARTER OF THE FINANCIAL YEAR ENDING WITH THE DATE SPECIFIED IN COLUMN (2) OF THE TABLE BELOW SHALL BE FURNISHED BY- (I) THE DUE DATE SPECIFIED IN THE CORRESPONDING ENTRY I N COLUMN (3) OF THE SAID TABLE, IF THE DEDUCTOR IS AN OFFICE OF GOVERNMENT; AND (II) THE DUE DATE SPECIFIED IN THE CORRESPONDING ENTRY I N COLUMN (4) OF THE SAID TABLE, IF THE DEDUCTOR IS A PERSON OTHER THAN THE PERSON REFE RRED TO IN CLAUSE (I) TABLE SL. NO. DATE OF ENDING OF QUARTER OF FINANCIAL YEAR DUE DATE DUE DATE (1) (2) (3) (4) 1 30TH JUNE 31ST JULY OF THE FINANCIAL YEAR 15TH JULY OF THE FINANCIAL YEAR 2 30TH SEPTEMBER 31ST OCTOBER OF THE FINANCIAL YEAR 15TH OCTOBER OF THE FINANCIAL YEAR 3 31ST DECEMBER 31ST JANUARY OF THE FINA NCIAL YEAR 15 TH JANUARY OF THE FINANCIAL YEAR 4 31ST MARCH 15TH MAY OF THE F INANCIAL YEAR IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE DEDUCTION IS MADE. 15TH MAY OF THE FINANCIAL YEAR IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE DEDUCTION IS MADE.' THIS RULE THUS, WHILE LAYING DOWN THE LAST DATE BY WHICH SUCH STATEMENTS SHOULD BE FILED, DRAWS TWO CATEGORIES; IN CASE OF DEDUCTOR IS AN OFFICE OF GOVERNMENT AND IN CASE OF A DEDUCTOR IS A PERSON OTHER THAN THE OFFIC E OF THE GOVERNMENT. CONSISTENTLY, THE OFFICE OF THE GOVERNMENT IS GRANTED 15 DAYS EXT RA TIME AS COMPARED TO THE OTHER DEDUCTORS. FOR EXAMPLE, THE STATEMENT FOR THE DATE OF THE QUARTER ENDING ON 30TH JUNE, AN ORDINARY DEDUCTOR WOULD HAVE TO FILE A STA TEMENT LATEST BY 15TH JULY OF THE SAME YEAR, WHEREAS FOR THE GOVERNMENT OFFICE, THE L AST DATE FOR FILING SUCH STATEMENT WOULD BE 31ST JULY OF THE SAID YEAR. THIS 15 DAYS EXTRA TIME IS A CONSISTENT FEATURE IN ALL FOUR QUARTERS. THE SHORT QUESTION IS, DID THE LEGISLATURE DISCRIMINATE IN DOING SO? IT IS WELL SETTLED THAT A RTICLE 14 DOES NOT PROHIBIT REASONABLE CLASSIFICATION BUT FROWNS UPON CLASS LEGISLATION. I N THE AFFIDAVIT IN REPLY FILED, THE RESPONDENTS HAVE POINTED OUT THAT MULTIPLE AGENCIES ARE INVOLVED IN EVERY TRANSACTION IN THE GOVERNMENT OFFICES AND THE SAME THEREFORE CANNOT BE COMPARED WITH THE PRIVATE INDIVIDUALS OR BUSINESS HOUSES. WE DO NOT FOUND THAT THE EXTRA TIME OF 15 DAYS FOR THE GOVERNMENT TO FILE A RETURN OF D EDUCTION OF TAX AT SOURCE IS IN ANY MANNER EITHER UNREASONABLE OR DISCRIMINATORY. IF TH E LEGISLATURE FOUND IT APPROPRIATE TO GRANT SLIGHTLY LONGER PERIOD TO THE GOVERNMENT A GENCIES LOOKING TO THE COMPLEX NATURE OF TRANSACTIONS INVOLVED, THE VOLUME AND TUR NOVER OF SUCH TRANSACTIONS AND FILTERING NECESSARY STATEMENTS REQUIRED AT MANY STA GES, IN OUR OPINION, THE SAME ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 19 WAS PERFECTLY LEGITIMATE. LOOKING TO THE DIFFERENCE S BETWEEN THE GOVERNMENT AGENCIES AND PRIVATE ASSESSEES IN THE CONTEXT OF PR OVIDING THE LAST DATE FOR FILING THE STATEMENTS, DO NOT FORM A HOMOGENEOUS CLASS WHICH C ANNOT BE FURTHER BIFURCATED. 16. WE NOW COME TO THE PETITIONER'S CENTRAL CHALLENGE VIZ. OF NON PERMISSIBILITY TO LEVY FEE UNDER SECTION 234E OF THE ACT TILL SECTION 200A OF THE ACT WAS AMENDED WITH EFFECT FROM 01.06.2015. WE HAVE NOTICED THE RELEVAN T STATUTORY PROVISIONS. THE PICTURE THAT EMERGES IS THAT PRIOR TO 01.07.2012, T HE ACT CONTAINED A SINGLE PROVISION IN SECTION 272A PROVIDING FOR PENALTY IN CASE OF DE FAULT IN FILING THE STATEMENTS IN TERMS OF SECTION 200 OR PROVISO TO SECTION 206C. SU CH PENALTY WAS PRESCRIBED AT THE RATE OF RS.100 FOR EVERY DAY DURING WHICH THE FAILU RE CONTINUED. WITH EFFECT FROM 01.06.2012, THREE MAJOR CHANGES WERE INTRODUCED IN THE ACT. SECTION 234E AS INTRODUCED FOR THE FIRST TIME TO PROVIDE FOR CHARGI NG OF FEE FOR LATE FILING OF THE STATEMENTS. SUCH FEE WOULD BE LEVIED AT THE RATE OF RS.200/- FOR EVERY DAY OF FAILURE SUBJECT TO THE MAXIMUM AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE AS THE CASE MAY BE. SECTION 271H WAS ALSO INTRODUCED FOR THE FIRST TIME FOR LEVYING PENALTY FOR FAILURE TO FURNISH THE STATEMENTS. SUCH PENALTY WOULD BE IN TH E RANGE OF RS.10,000/- AND RS.1 LAKH. NO PENALTY WOULD BE IMPOSED IF THE TAX IS DEP OSITED WITH FEE AND INTEREST AND THE STATEMENT IS FILED WITHIN ONE YEAR OF THE DUE D ATE. WITH ADDITION TO THESE TWO PROVISIONS PRESCRIBING FEE AND PENALTY RESPECTIVELY , CLAUSE (K) OF SUB-SECTION (2) OF SECTION 272A BECAME REDUNDANT AND BY ADDING A PROVI SO TO THE SAID SECTION, THIS EFFECT WAS THEREFORE LIMITED UPTO 01.07.2012. 17. IN ESSENCE, SECTION 234E THUS PRESCRIBED FOR THE F IRST TIME CHARGING OF A FEE FOR EVERY DAY OF DEFAULT IN FILING OF STATEMENT UNDER S UB-SECTION (3) OF SECTION 200 OR ANY PROVISO TO SUB-SECTION (3) OF SECTION 206C. THIS PR OVISION WAS APPARENTLY ADDED FOR MAKING THE COMPLIANCE OF DEDUCTION AND COLLECTION O F TAX AT SOURCE, DEPOSITING IT WITH GOVERNMENT REVENUE AND FILING OF THE STATEMENT S MORE STRINGENT. 18. IN THIS CONTEXT, WE MAY NOTICE THAT SECTION 200A W HICH PERTAINS TO PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE PROVIDES FOR T HE PROCEDURE ONCE A STATEMENT OF DEDUCTION OF TAX AT SOURCE IS FILED BY THE PERSO N RESPONSIBLE TO DO SO AND AUTHORIZES THE ASSESSING OFFICER TO MAKE CERTAIN AD JUSTMENTS WHICH ARE PRIMA-FACIE OR ARITHMETICAL IN NATURE. THE OFFICER WOULD THEN S END AN INTIMATION OF A STATEMENT TO THE ASSESSEE. PRIOR TO 01.06.2015, THIS PROVISION D ID NOT INCLUDE ANY REFERENCE TO THE FEE PAYABLE UNDER SECTION 234E OF THE ACT. BY RECAS TING SUB-SECTION (1), THE NEW CLAUSE-C PERMITS THE AUTHORITY TO COMPUTE THE FEE, IF ANY, PAYABLE BY THE ASSESSEE UNDER SECTION 234E OF THE ACT AND BY VIRTUE OF CLAU SE-D, ADJUST THE SAID SUM AGAINST THE AMOUNT PAID UNDER THE VARIOUS PROVISIONS OF THE ACT. 19. IN PLAIN TERMS, SECTION 200A OF THE ACT IS A MACHI NERY PROVISION PROVIDING MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS, WHICH ARE, AS NOTED EARLIER, ARITHMETI CAL OR PRIMA-FACIE IN NATURE. WITH EFFECT FROM 01.06.2015, THIS PROVISION SPECIFICALLY PROVIDES FOR COMPUTING THE FEE PAYABLE UNDER SECTION 234E OF THE ACT. ON THE OTHER HAND, SECTION 234E IS A CHARGING PROVISION CREATING A CHARGE FOR LEVYING FE E FOR CERTAIN DEFAULTS IN FILING THE STATEMENTS. UNDER NO CIRCUMSTANCES A MACHINERY PROV ISION CAN OVERRIDE OR OVERRULE A CHARGING PROVISION. WE ARE UNABLE TO SEE THAT SEC TION 200A OF THE ACT CREATES ANY CHARGE IN ANY MANNER. IT ONLY PROVIDES A MECHANISM FOR PROCESSING A STATEMENT FOR ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 20 TAX DEDUCTION AND THE METHOD IN WHICH THE SAME WOUL D BE DONE. WHEN SECTION 234E HAS ALREADY CREATED A CHARGE FOR LEVYING FEE T HAT WOULD THEREAFTER NOT BEEN NECESSARY TO HAVE YET ANOTHER PROVISION CREATING TH E SAME CHARGE. VIEWING SECTION 200A AS CREATING A NEW CHARGE WOULD BRING ABOUT A D ICHOTOMY. IN PLAIN TERMS, THE PROVISION IN OUR UNDERSTANDING IS A MACHINERY PROVI SION AND AT BEST PROVIDES FOR A MECHANISM FOR PROCESSING AND COMPUTING BESIDES OTHE R, FEE PAYABLE UNDER SECTION 234E FOR LATE FILING OF THE STATEMENTS. 20. EVEN IN ABSENCE OF SECTION 200A OF THE ACT WITH IN TRODUCTION OF SECTION 234E, IT WAS ALWAYS OPEN FOR THE REVENUE TO DEMAND AND COLLE CT THE FEE FOR LATE FILING OF THE STATEMENTS. SECTION 200A WOULD MERELY REGULATE THE MANNER IN WHICH THE COMPUTATION OF SUCH FEE WOULD BE MADE AND DEMAND RA ISED. IN OTHER WORDS, WE CANNOT SUBSCRIBE TO THE VIEW THAT WITHOUT A REGULAT ORY PROVISION BEING FOUND FOR SECTION 200A FOR COMPUTATION OF FEE, THE FEE PRESCR IBED UNDER SECTION 234E CANNOT BE LEVIED. ANY SUCH VIEW WOULD AMOUNT TO A CHARGING SECTION YIELDING TO THE MACHINERY PROVISION. IF AT ALL, THE RECASTED CLAUSE (C) OF SUB-SECTION (1) OF SECTION 200A WOULD BE IN NATURE OF CLARIFICATORY AMENDMENT. EVEN IN ABSENCE OF SUCH PROVISION, AS NOTED, IT WAS ALWAYS OPEN FOR THE REV ENUE TO CHARGE THE FEE IN TERMS OF SECTION 234E OF THE ACT. BY AMENDMENT, THIS ADJU STMENT WAS BROUGHT WITHIN THE FOLD OF SECTION 200A OF THE ACT. THIS WOULD HAVE ON E DIRECT EFFECT. AN ORDER PASSED UNDER SECTION 200A OF THE ACT IS RECTIFIABLE UNDER SECTION 154 OF THE ACT AND IS ALSO APPEALABLE UNDER SECTION 246A. IN ABSENCE OF THE PO WER OF AUTHORITY TO MAKE SUCH ADJUSTMENT UNDER SECTION 200A OF THE ACT, ANY CALCU LATION OF THE FEE WOULD NOT PARTAKE THE CHARACTER OF THE INTIMATION UNDER SAID PROVISION AND IT COULD BE ARGUED THAT SUCH AN ORDER WOULD NOT BE OPEN TO ANY RECTIFI CATION OR APPEAL. UPON INTRODUCTION OF THE RECASTED CLAUSE (C), THIS SITUA TION ALSO WOULD BE OBVIATED. EVEN PRIOR TO 01.06.2015, IT WAS ALWAYS OPEN FOR THE REV ENUE TO CALCULATE FEE IN TERMS OF SECTION 234E OF THE ACT. THE KARNATAKA HIGH COURT I N CASE OF FATHERAJ SINGHVI ( SUPRA ) HELD THAT SECTION 200A WAS NOT MERELY A REGULATOR Y PROVISION, BUT WAS CONFERRING SUBSTANTIVE POWER ON THE AUTHORITY. THE COURT WAS ALSO OF THE OPINION THAT SECTION 234E OF THE ACT WAS IN THE NATURE OF PRIVIL EGE TO THE DEFAULTER IF HE FAILS TO PAY FEES THEN HE WOULD BE RID OF RIGOR OF THE PENAL PROVISION OF SECTION 271H OF THE ACT. WITH BOTH THESE PROPOSITIONS, WITH RESPECT, WE ARE UNABLE TO CONCUR. SECTION 200A IS NOT A SOURCE OF SUBSTANTIVE POWER. SUBSTANT IVE POWER TO LEVY FEE CAN BE TRACED TO SECTION 234E OF THE ACT. FURTHER THE FEE UNDER SECTION 234E OF THE ACT IS NOT IN LIEU OF THE PENALTY OF SECTION 271H OF THE A CT. BOTH ARE INDEPENDENT LEVIES. SECTION 271H ONLY PROVIDES THAT SUCH PENALTY WOULD NOT BE LEVY IF CERTAIN CONDITIONS ARE FULFILLED. ONE OF THE CONDITIONS IS THAT THE TA X WITH FEE AND INTEREST IS PAID. THE ADDITIONAL CONDITION BEING THAT THE STATEMENT IS FI LED LATEST WITHIN ONE YEAR FROM THE DUE DATE. 21. COUNSEL FOR THE PETITIONER HOWEVER, REFERRED TO TH E DECISION OF SUPREME COURT IN CASE OF CIT V. B.C. SRINIVASA SETTY [1981] 128 ITR 294/5 TAXMAN 1 (SC) , TO CONTEND THAT WHEN A MACHINERY PROVISION IS NOT PROVIDED, TH E LEVY ITSELF WOULD FAIL. THE DECISION OF SUPREME COURT IN CASE OF B C SRINIVASA SETTY ( SUPRA ) WAS RENDERED IN ENTIRELY DIFFERENT BACKGROUND. ISSUE INVOLVED WAS O F CHARGING CAPITAL GAIN ON TRANSFER OF A CAPITAL ASSET. IN CASE ON HAND, THE ASSET WAS IN THE NATURE OF GOODWILL. THE SUPREME COURT REFERRING TO VARIOUS PROVISIONS CONCE RNING CHARGING AND COMPUTING CAPITAL GAIN OBSERVED THAT NONE OF THESE PROVISIONS SUGGEST THAT THEY INCLUDE AN ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 21 ASSET IN THE ACQUISITION OF WHICH NO COST CAN BE CO NCEIVED. IN SUCH A CASE, THE ASSET IS SOLD AND THE CONSIDERATION IS BROUGHT TO TAX, WH AT IS CHARGED IS A CAPITAL VALUE OF THE ASSET AND NOT ANY PROFIT OR GAIN. THIS DECISION THEREFORE WOULD NOT APPLY IN THE PRESENT CASE. 22. IN THE RESULT, PETITION FAILS AND IS DISMISSED. 3.4 ADMITTEDLY, THERE IS NO DECISION BY HONBLE BOM BAY HIGH COURT ON THE STATED ISSUE. THE DECISION OF MUMBAI TRIBUNAL A S REFERRED TO IN THE IMPUGNED ORDER HAS BEEN RENDERED PRIOR TO THE AFORE SAID DECISION OF HONBLE GUJARAT HIGH COURT AND THEREFORE, NO GUIDAN CE COULD BE OBTAINED FROM THE SAME. 3.5 THE LD. CIT(A), OBSERVING THE CONFLICTING DECIS IONS, CHOSE TO PREFER THE LATER DECISION OF HONBLE GUJARAT HIGH COURT FO LLOWING THE LAW OF STARE DECISIS AS EXPLAINED BY HONBLE BOMBAY HIGH COURT I N CIT V/S THANA ELECTRICITY SUPPLY LTD. (206 ITR 727 22/04/1993) WHEREIN HONBLE COURT HAS HELD AS UNDER: - ON A CAREFUL CONSIDERATION OF THE SUBMISSIONS OF LE ARNED COUNSEL FOR THE ASSESSEE, WE FIND THAT BEFORE TAKING UP THE ISSUE INVOLVED IN THE QUESTION OF LAW REFERRED TO US IN THIS CASE FOR CONSIDERATION, IT IS NECESSARY TO FIRST DECIDE THE LAST SUBMISSION OF LEARNED COUNSEL THAT THIS COURT, WHILE INTERPRETING AN ALL-INDIA STATUTE LIKE THE INCOME- TAX ACT, IS BOUND TO FOLLOW THE DECISION OF ANY OTH ER HIGH COURT AND TO DECIDE ACCORDINGLY EVEN IF ITS OWN VIEW IS CONTRARY THERET O, IN VIEW OF THE PRACTICE FOLLOWED BY THIS COURT IN SUCH MATTERS. BECAUSE, IF WE ARE T O ACCEPT THIS SUBMISSION, IT WILL BE AN EXERCISE IN FUTILITY TO EXAMINE THE REAL CONTROV ERSY BEFORE US WITH A VIEW TO DECIDE THE ISSUE, AS IN THAT CASE IN VIEW OF THE CALCUTTA DECISION WHATEVER MAY BE OUR DECISION ON THE QUESTION OF LAW REFERRED TO US, WE WOULD BE BOUND TO FOLLOW THE DECISION OF THE CALCUTTA HIGH COURT AND ANSWER THE QUESTION ACCORDINGLY. THIS SUBMISSION, IN OUR OPINION, IS NOT TENABLE AS IT GO ES COUNTER NOT ONLY TO THE POWERS OF THIS COURT TO HEAR THE REFERENCE AND DECIDE THE QUESTIONS OF LAW RAISED THEREIN AND TO DELIVER ITS JUDGMENT THEREON BUT ALSO TO THE DOC TRINE OF BINDING PRECEDENT KNOWN AS STARE DECISIS. WE SHALL DEAL WITH THE REASONS FO R THE SAME AT SOME LENGTH A LITTLE LATER. WE HAVE ALSO CAREFULLY GONE THROUGH THE DECISIONS O F THIS COURT REFERRED TO BY COUNSEL FOR THE ASSESSEE IN SUPPORT OF HIS ABOVE CO NTENTION. IN OUR OPINION, THE OBSERVATIONS IN THOSE DECISIONS HAVE NOT BEEN PROPE RLY APPRECIATED. THEY HAVE BEEN TOO WIDELY INTERPRETED. THERE APPEARS TO BE A MISCONCEPTION ABOUT THE NATURE THEREOF AND THEIR BINDING EFFECT. WE SHALL ALSO REF ER TO THOSE DECISIONS AND THE ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 22 RELEVANT OBSERVATIONS THEREIN AND DISCUSS THEIR NAT URE. BEFORE DOING THAT, IT MAY BE EXPEDIENT TO BRIEFLY STATE THE DOCTRINE OF BINDING PRECEDENT, COMMONLY KNOWN AS STARE DECISIS. AT THE OUTSET, IT MAY BE APPROPRIATE TO POINT OUT THE WELL-SETTLED LEGAL POSITION THAT WHAT IS BINDING ON THE COURTS IS THE RATIO OF A DECISION. THERE IS A CLEAR DISTINCTION BETWEEN THE RATIO OF A DECISION, OBITER DICTA AND OBSERVATIONS FROM THE POINT OF VIEW OF PRECEDENT VALUE OR THEIR BINDING E FFECT. IT WILL BE NECESSARY IN THIS CASE TO EXPLAIN THIS DISTINCTION. BUT BEFORE WE DO SO, WE MAY DISCUSS THE PRINCIPLE OF BINDING PRECEDENT. THIS WILL TAKE US TO THE QUESTIO N WHOSE DECISION BINDS WHOM. FOR DECIDING WHOSE DECISION IS BINDING ON WHOM, IT IS NECESSARY TO KNOW THE HIERARCHY OF THE COURTS. IN INDIA, THE SUPREME COUR T IS THE HIGHEST COURT OF THE COUNTRY. THAT BEING SO, SO FAR AS THE DECISIONS OF THE SUPREME COURT ARE CONCERNED, IT HAS BEEN STATED IN ARTICLE 141 OF THE CONSTITUTI ON ITSELF THAT : 'THE LAW DECLARED BY THE SUPREME COURT SHALL BE BIN DING ON ALL COURTS WITHIN THE TERRITORY OF INDIA.' IN THAT VIEW OF THE MATTER, ALL COURTS IN INDIA ARE BOUND TO FOLLOW THE DECISIONS OF THE SUPREME COURT. THOUGH THERE IS NO PROVISION LIKE ARTICLE 141 WHICH SPECIFICALLY LAYS DOWN THE BINDING NATURE OF THE DECISION OF THE HIGH COURTS, IT IS A WELL-ACCEPTED LEGAL POSITION THAT A SINGLE JUDGE OF A HIGH COURT IS ORDINARILY BOUND TO ACCEPT AS CORRECT JUDGMENTS OF COURTS OF CO-ORDINATE JURISDICTION AND OF THE DIVIS ION BENCHES AND OF THE FULL BENCHES OF HIS COURT AND OF THE SUPREME COURT. EQUA LLY WELL-SETTLED IS THE POSITION THAT WHEN A DIVISION BENCH OF THE HIGH COURT GIVES A DECISION ON A QUESTION OF LAW, IT SHOULD GENERALLY BE FOLLOWED BY A CO-ORDINATE BE NCH OF THE SAME HIGH COURT. IF THE CO-ORDINATE BENCH IN THE SUBSEQUENT CASE WANTS THE EARLIER DECISION TO BE RECONSIDERED, IT SHOULD REFER THE QUESTION AT ISSUE TO A LARGER BENCH. IT IS EQUALLY WELL-SETTLED THAT THE DECISION OF ONE HIGH COURT IS NOT A BINDING PRECEDENT ON ANOTHER HIGH COURT. THE SUPREME COURT IN VATTIAMA CHAMPAKA PILLAI V. SIVATHANU PILLAI, AIR 1979 SC 1937, DEALING WITH THE CONTROVERSY WHET HER A DECISION OF THE ERSTWHILE TRAVANCORE HIGH COURT CAN BE MADE A BINDING PRECEDENT ON THE MADRAS HIGH COURT ON THE BASIS OF THE PRINCI PLE OF STARE DECISIS, CLEARLY HELD THAT SUCH A DECISION CAN AT BEST HAVE PERSUASIVE EF FECT AND NOT THE FORCE OF BINDING PRECEDENT ON THE MADRAS HIGH COURT. REFERRING TO TH E STATES REORGANISATION ACT, IT WAS OBSERVED THAT THERE WAS NOTHING IN THE SAID ACT OR ANY OTHER LAW WHICH EXALTS THE RATIO OF THOSE DECISIONS TO THE STATUS OF A BIN DING LAW NOR COULD THE RATIO DECIDENDI OF THOSE DECISIONS BE PERPETUATED BY INVO KING THE DOCTRINE OF STARE DECISIS. THE DOCTRINE OF STARE DECISIS CANNOT BE ST RETCHED THAT FAR AS TO MAKE THE DECISION OF ONE HIGH COURT A BINDING PRECEDENT FOR THE OTHER. THIS DOCTRINE IS APPLICABLE ONLY TO DIFFERENT BENCHES OF THE SAME HI GH COURT. IT IS ALSO WELL-SETTLED THAT THOUGH THERE IS NO SPE CIFIC PROVISION MAKING THE LAW DECLARED BY THE HIGH COURT BINDING ON SUBORDINATE C OURTS, IT IS IMPLICIT IN THE POWER OF SUPERVISION CONFERRED ON A SUPERIOR TRIBUNAL THA T THE TRIBUNALS SUBJECT TO ITS SUPERVISION WOULD CONFIRM TO THE LAW LAID DOWN BY I T. IT IS IN THAT VIEW OF THE MATTER THAT THE SUPREME COURT IN EAST INDIA COMMERCIAL CO, LTD. V. COLLECTOR OF CUSTOMS, AIR 1962 SC 1893 (AT PAGE 1905) DECLARED : ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 23 'WE, THEREFORE, HOLD THAT THE LAW DECLARED BY THE H IGHEST COURT IN THE STATE IS BINDING ON AUTHORITIES OR TRIBUNALS UNDER ITS SUPERINTENDEN CE, AND THEY CANNOT IGNORE IT. ...' THIS POSITION HAS BEEN VERY APTLY SUMMED UP BY THE SUPREME COURT IN MAHADEOLAL KANODIA V. ADMINISTRATOR-GENERAL OF WEST BENGAL, AIR 1960 SC 936 (AT PAGE 941) AS FOLLOWS : 'JUDICIAL DECORUM NO LESS THAN LEGAL PROPRIETY FORM S THE BASIS OF JUDICIAL PROCEDURE. IF ONE THING IS MORE NECESSARY IN LAW THAN ANY OTHE R THING, IT IS THE QUALITY OF CERTAINTY. THAT QUALITY WOULD TOTALLY DISAPPEAR IF JUDGES OF CO-ORDINATE JURISDICTION IN A HIGH COURT START OVERRULING ONE ANOTHER'S DECISIONS . IF ONE DIVISION BENCH OF A HIGH COURT IS UNABLE TO DISTINGUISH A PREVIOUS DECISION OF ANOTHER DIVISION BENCH, AND HOLDING THE VIEW THAT THE EARLIER DECISION IS WRONG , ITSELF GIVES EFFECT TO THAT VIEW, THE RESULT WOULD BE UTTER CONFUSION. THE POSITION WOULD BE EQUALLY BAD WHERE A JUDGE SITTING SINGLY IN THE HIGH COURT IS OF OPINION THAT THE PREVIOUS DECISION OF ANOTHER SINGLE JUDGE ON A QUESTION OF LAW IS WRONG AND GIVE S EFFECT TO THAT VIEW INSTEAD OF REFERRING THE MATTER TO A LARGER BENCH.' THE ABOVE DECISION WAS FOLLOWED BY THE SUPREME COUR T IN BARADAHANTA MISHRA V. BHIMSEN DIXIT, AIR 1972 SC 2466, WHEREIN THE LEGAL POSITION WAS RE ITERATED IN THE FOLLOWING WORDS (AT PAGE 2469) : 'IT WOULD BE ANOMALOUS TO SUGGEST THAT A TRIBUNAL O VER WHICH THE HIGH COURT HAS SUPERINTENDENCE CAN IGNORE THE LAW DECLARED BY THAT COURT AND START PROCEEDINGS IN DIRECT VIOLATION OF IT. IF A TRIBUNAL CAN DO SO, AL L THE SUBORDINATE COURTS CAN EQUALLY DO SO, FOR THERE IS NO SPECIFIC PROVISION, JUST LIKE I N THE CASE OF SUPREME COURT, MAKING THE LAW DECLARED BY THE HIGH COURT BINDING ON SUBOR DINATE COURTS. IT IS IMPLICIT IN THE POWER OF SUPERVISION CONFERRED ON A SUPERIOR TRIBUN AL THAT ALL THE TRIBUNALS SUBJECT TO ITS SUPERVISION SHOULD CONFORM TO THE LAW LAID D OWN BY IT. SUCH OBEDIENCE WOULD ALSO BE CONDUCIVE TO THEIR SMOOTH WORKING; OTHERWIS E THERE WOULD BE CONFUSION IN THE ADMINISTRATION OF LAW AND RESPECT FOR LAW WOULD IRRETRIEVABLY SUFFER.' HAVING DECIDED WHOSE DECISION BINDS WHOM, WE MAY NE XT EXAMINE WHAT IS BINDING. IT IS WELL-SETTLED THAT IT IS ONLY THE RATIO DECIDE NDI THAT HAS A PRECEDENT VALUE. AS OBSERVED BY THE SUPREME COURT IN S.P. GUPTA V. PRESIDENT OF INDIA, AIR 1982 SC 149 (AT PAGE 231) : 'IT IS ELEMENTARY THAT WHAT IS BINDING ON THE COURT IN A SUBSEQUENT CASE IS NOT THE CONCLUSION ARRIVED AT IN A PREVIOUS DECISION, BUT THE RATIO OF THAT DECISION, FOR IT IS THE RATIO WHICH BINDS A S A PRECEDENT AND NOT THE CONCLUSION.' A CASE IS ONLY AN AUTHORITY FOR WHAT I T ACTUALLY DECIDES AND NOT WHAT MAY COME TO FOLLOW LOGICALLY FROM IT. JUDGMENTS OF COURTS ARE NOT TO BE CONSTRUED AS STATUTES (SEE AMAR NATH OM PARKASH V. STATE OF PUNJAB, AIR 1985 SC 218; [1985] 1 SCC 345). WHILE FOLLOWING PRECEDENTS, THE COURT SHOULD KEEP I N MIND THE FOLLOWING OBSERVATIONS IN MUMBAI KAMGAR SABHA V. ABDULBHAI FAIZULLABHAI [1976] 49 FJR 15, 32 ; AIR 1976 SC 1455 (AT PAGES 1467-68) : 'IT IS TRITE, GOING BY ANGLOPHONIC PRINCIPLES, THAT A RULING OF A SUPERIOR COURT IS BINDING LAW. IT IS NOT OF SCRIPTURAL SANCTITY BUT IS OF RAT IOWISE LUMINOSITY WITHIN THE EDIFICE OF FACTS WHERE THE JUDICIAL LAMP PLAYS THE LEGAL FLAME . BEYOND THOSE WALLS AND DE HORS THE MILIEU WE CANNOT IMPART ETERNAL VERNAL VALUE TO THE DECISION, EXALTING THE ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 24 DOCTRINE OF PRECEDENTS INTO A PRISON-HOUSE OF BIGOT RY, REGARDLESS OF VARYING CIRCUMSTANCES AND MYRIAD DEVELOPMENTS. REALISM DICT ATES THAT A JUDGMENT HAS TO BE READ, SUBJECT TO THE FACTS DIRECTLY PRESENTED FO R CONSIDERATION AND NOT AFFECTING THOSE MATTERS WHICH MAY LURK IN THE RECORD. WHATEVE R BE THE POSITION OF A SUBORDINATE COURT'S CASUAL OBSERVATIONS, GENERALISA TIONS AND SUBSILENTIO DETERMINATIONS MUST BE JUDICIOUSLY READ BY COURTS O F CO-ORDINATE JURISDICTION.' DECISION ON A POINT NOT NECESSARY FOR THE PURPOSE O F THE DECISION OR WHICH DOES NOT FALL TO BE DETERMINED IN THAT DECISION BECOMES AN O BITER DICTUM. SO ALSO, OPINIONS ON QUESTIONS WHICH ARE NOT NECESSARY FOR DETERMINING O R RESOLVING THE ACTUAL CONTROVERSY ARISING IN THE CASE PARTAKE OF THE CHAR ACTER OF OBITER. OBITER OBSERVATIONS, AS SAID BY BHAGWATI J. (AS HIS LORDSH IP THEN WAS) IN ADDL. DISTRICT MAGISTRATE, JABALPUR V. SHIVAHANT SHUKLA, AIR 1976 SC 1207, 1378, WOULD UNDOUBTEDLY BE ENTITLED TO GREAT WEIGHT, BUT 'AN OB ITER CANNOT TAKE THE PLACE OF THE RATIO. JUDGES ARE NOT ORACLES'. SUCH OBSERVATIONS D O NOT HAVE ANY BINDING EFFECT AND THEY CANNOT BE REGARDED AS CONCLUSIVE. AS OBSERVED BY THE PRIVY COUNCIL IN BAKER V. THE QUEEN [1975] 3 ALL ER 55 (AT PAGE 64), THE COURT'S AUTHOR ITATIVE OPINION MUST BE DISTINGUISHED FROM PROPOSITIONS ASSUMED BY THE COUR T TO BE CORRECT FOR THE PURPOSE OF DISPOSING OF THE PARTICULAR CASE. THIS POSITION HAS BEEN MADE FURTHER CLEAR BY THE SUPREME COURT IN A RECENT DECISION IN CIT V. SUN ENGINEERING WORKS P. LTD. [1992] 198 ITR 297 , AT PAGE 320, WHERE IT WAS OBSERVED : 'IT IS NEITHER DESIRABLE NOR PERMISSIBLE TO PICK OU T A WORD OR A SENTENCE FROM THE JUDGMENT OF THIS COURT, DIVORCED FROM THE CONTEXT O F THE QUESTION UNDER CONSIDERATION AND TREAT IT TO BE THE COMPLETE 'LAW' DECLARED BY T HIS COURT. THE JUDGMENT MUST BE READ AS A WHOLE AND THE OBSERVATIONS FROM THE JUDGM ENT HAVE TO BE CONSIDERED IN THE LIGHT OF THE QUESTIONS WHICH WERE BEFORE THIS C OURT. A DECISION OF THIS COURT TAKES ITS COLOUR FROM THE QUESTIONS INVOLVED IN THE CASE IN WHICH IT IS RENDERED AND, WHILE APPLYING THE DECISION TO A LATER CASE, THE COURTS M UST CAREFULLY TRY TO ASCERTAIN THE TRUE PRINCIPLE LAID DOWN BY THE DECISION OF THIS CO URT AND NOT TO PICK OUT WORDS OR SENTENCES FROM THE JUDGMENT, DIVORCED FROM THE CONT EXT OF THE QUESTIONS UNDER CONSIDERATION BY THIS COURT, TO SUPPORT THEIR REASO NING.' IN THE ABOVE DECISION, THE SUPREME COURT, ALSO QUOT ED WITH APPROVAL, THE FOLLOWING NOTE OF CAUTION GIVEN BY IT EARLIER IN MADHAV RAO JIVAJI RAO SCINDIA BAHADUR V. UNION OF INDIA, AIR 1971 SC 530, AT PAGE 578 (AT PAGE 320 OF 198 IT R) : 'IT IS NOT PROPER TO REGARD A WORD, A CLAUSE OR A S ENTENCE OCCURRING IN A JUDGMENT OF THE SUPREME COURT, DIVORCED FROM ITS CONTEXT, AS CO NTAINING A FULL EXPOSITION OF THE LAW ON A QUESTION WHEN THE QUESTION DID NOT EVEN FA LL TO BE ANSWERED IN THAT JUDGMENT.' IT IS THUS CLEAR THAT IT IS ONLY THE RATIO DECIDEND I OF A CASE WHICH CAN BE BINDINGNOT OBITER DICTUM. OBITER, AT BEST, MAY HAVE SOME PERSU ASIVE EFFICACY. FROM THE FOREGOING DISCUSSION, THE FOLLOWING PROPOS ITIONS EMERGE : ( A ) THE LAW DECLARED BY THE SUPREM E COURT BEING BINDING ON ALL COURTS IN INDIA, THE DECISIONS OF THE SUPREME COURT ARE BINDING ON A LL COURTS , EXCEPT, HOWEVER, THE SUPREME COURT ITSELF WHICH IS FREE TO REVIEW THE SAME AND ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 25 DEPART FROM ITS EARLIER OPINION IF THE SITUATION SO WARRANTS. WHAT IS BINDING IS, OF COURSE, THE RATIO OF THE DECISION AND NOT EVERY EXPRESSION FOUND THEREIN. ( B ) THE DECIS IONS OF THE HIGH COURT ARE BINDING ON THE SUBORDINA TE COURTS AND AUTHORITIES OR TRIBUNALS UNDER ITS SUPERINTENDENCE TH ROUGH OUT THE TERRITORIES IN RELATION TO WHICH IT EXERCISES JURISDICTION. IT DOES NOT EXTEND BEYOND ITS TERRITORIAL JURISDICTION. ( C ) T HE POSITION IN REGARD TO THE BINDING NATURE OF THE DECISIONS OF A HIGH COURT ON DIFFERENT BENCHES OF THE SAME COURT MA Y BE SUMMED UP AS FOLLOWS : ( I ) A SINGLE JUDGE OF A HIGH COURT IS BOUND BY THE DECI SION OF ANOTHER SINGLE JUDGE OR A DIVISION BENCH OF THE SAME HIGH COURT. IT WOULD BE JUDICIAL IMPROPRIETY TO IGNORE THAT DECISION. JUDICIAL C OMITY DEMANDS THAT A BINDING DECISION TO WHICH HIS ATTENTION HAD BEEN DRAWN SHOU LD NEITHER BE IGNORED NOR OVERLOOKED. IF HE DOES NOT FIND HIMSELF IN AGREEMEN T WITH THE SAME, THE PROPER PROCEDURE IS TO REFER THE BINDING DECISION A ND DIRECT THE PAPERS TO BE PLACED BEFORE THE CHIEF JUSTI CE TO ENABLE HIM TO CONSTITUTE A LARGER BENCH TO EXAMINE THE QUESTION (SEE FOOD CORPORATION OF INDIA V. YADAV ENGINEER AND CONTRACTOR, AIR 1982 SC 1302). ( II ) A DIVISION BENCH OF A HIGH COURT SHOULD FOLLOW TH E DECISION OF AN OTHER DIVISION BENCH OF EQUAL STRENGTH OR A FULL BENCH OF THE SAME HIGH COURT. IF ONE DIVISION BENCH DIFFERS FROM ANOTHER DIVISION BE NCH OF THE SAME HIGH COURT, IT SHOULD REFER THE CASE TO A LARGER BENCH. ( III ) WHERE THERE ARE CONFLICTING DECISIONS OF C OURTS OF CO - ORDINATE JURISDIC TION, THE LATER DECISION IS TO BE PREFERRED IF REAC HED AFTER FULL CONSIDERATION OF THE EARLIER DECISIONS. ( D ) THE DECISION OF ONE HIGH COURT IS NEITHER BINDING PRECEDENT FOR ANOTHER HIGH COURT NOR FOR COURTS OR TRIBUNALS OUTSIDE ITS OWN T ERRITORIAL JURI SDICTION. IT IS WELL- SETTLED THAT THE DECISION OF A HIGH COURT WILL HAVE THE FORCE OF BINDING PRECEDENT ONLY IN THE STATE OR TERRITORIES ON WHICH THE COURT HAS JU RISDICTION. IN OTHER STATES OR OUTSIDE THE TERRITORIAL JURISDIC TION OF THAT HIGH COURT IT MAY, AT BEST, HAVE ONLY PERSUASIVE EFFECT. BY NO AMOUNT OF STRETCHING OF THE DOCTRINE OF STARE DECISIS, CAN JUDGMENTS OF ONE HIG H COURT BE GIV EN THE STATUS OF A BINDI NG PRECEDENT SO FAR AS OTHER HIGH COURTS OR COURTS OR TRIBUNALS WITHIN THEIR TERRITORIAL JURIS DICTION ARE CONCERNED. ANY SUCH ATTEMPT WILL GO COUNTER TO THE VERY DOCTRINE OF STARE DECIS IS AND ALSO THE VARIOUS DECISIONS OF THE SUPREME COURT WHICH HAVE INTER PRETED THE SCOPE AND AMBIT THEREOF. THE FACT THAT THERE IS ONLY ONE DECISION O F ANY ONE HIGH C OURT ON A PARTICULAR POINT OR THAT A NUMBER OF DIFFERENT HIGH COURTS HAVE TAKEN IDENTICAL VIEWS IN THAT REGARD IS NOT AT ALL RELEVANT FOR THA T PURPOSE. WHATEVER M AY BE THE CONCLUSION, THE DECISIONS CANNOT HAVE THE FORCE OF BIND ING PRECEDENT ON OTHER HIGH C OURTS OR ON ANY SUBORDINATE COURTS OR TRIBUNALS WIT HIN THEIR JURISDICTION. THAT STATUS IS RESERVED ONLY FOR THE DECISIONS OF THE SUPREME COURT WHICH ARE BINDING O N ALL COURTS IN THE COUNTRY BY VIRTUE OF ARTICLE 14 1 OF THE CONSTITUTION. ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 26 HOWEVER, UPON PERUSAL, WE NOTE THAT THE OBSERVATION THAT DECISION IN LATER POINT OF TIME HAS TO BE FOLLOWED HAS BEEN MAD E IN THE CONTEXT OF DECISIONS RENDERED BY DIFFERENT BENCHES OF SAME HIG H COURT AND THE SAID OBSERVATION DO NOT APPLY IN CASE OF CONFLICTIN G DECISIONS OF TWO NON- JURISDICTIONAL HIGH COURT. 3.6 PROCEEDING FURTHER, WE FIND THAT PUNE BENCH OF TRIBUNAL IN ITS RECENT DECISION TILED AS MEDICAL SUPERINTENDENT RURAL HOSPITAL, DOBI, BK V/S DCIT (100 TAXMNAN.COM 78 25/10/2018), FACED WITH SIMILAR FACTUAL MATRIX, CHOSE TO FOLLOW THE FAVORABLE DECISION REND ERED BY HONBLE KARNATAKA HIGH COURT BY DRAWING ANALOGY FROM THE DE CISION OF HONBLE SUPREME COURT RENDERED IN CIT V/S VEGETABLE PRODUCTS LTD. (1972 88 ITR 192) FOR THE CONCLUSION THAT IN CASE OF TWO REASONABLE C ONSTRUCTIONS OF TAXING STATUTES, THE ONE THAT FAVORS THE ASSESSE E MUST BE ADOPTED. THE RELEVANT FINDINGS OF CO-ORDINATE BENCH WERE AS FOLLOWS: - 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD. THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEALS IS AGAINST LEVY OF LATE FILING FEES UNDER SECTION 234E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 2 00A OF THE ACT, IN THE FIRST BUNCH OF APPEALS. THE SECOND BUNCH OF APPEALS IN THE CASE OF JUNAGADE HEALTHCARE PVT. LTD. IS AGAINST ORDER OF ASSESSING OFFICER PASSED UNDER SECTION 154 OF THE ACT REJECTING RECTIFICATION APPLICATION MOVED BY ASSESSEE AGAINST INTIMATION ISSUED LEVYING LATE FILING FEES CHARGED UNDER SECTION 234E OF THE ACT. THE CASE OF ASSESSEE BEFORE US IS THAT THE ISSUE IS SQUARELY COVERED BY VARIOUS ORDER S OF TRIBUNAL, WHEREIN THE ISSUE HAS BEEN DECIDED IN RESPECT OF LEVY OF LATE FILING FEES UNDER SECTION 234E OF THE ACT, IN THE ABSENCE OF EMPOWERMENT BY THE ACT UPON ASSES SING OFFICER TO LEVY SUCH FEES WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT. THE TRIBUNAL VIDE ORDER DATED 21.09.2016 WITH LEAD ORDER IN MAHARASHTRA CRICKET ASSOCIATION V. DY. CIT [2016] 74 TAXMANN.COM 6 (PUNE - TRIB.) RELATING TO ASSESSMENT YEARS 2013-14 AND 2014-15 FOR THE RESPECTIVE QUARTERS DELIBERATED UPON THE ISSUE AND HELD AS UNDER: '34. ACCORDINGLY, WE HOLD THAT THE AMENDMENT TO SEC TION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE AND IN VIEW THEREOF, THE ASSES SING OFFICER WHILE PROCESSING THE TDS STATEMENTS / RETURNS IN THE PRESENT SET OF APPE ALS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, THE INTIMATION ISSUED BY THE ASSESSING OFFIC ER UNDER SECTION 200A OF THE ACT IN ALL THESE APPEALS DOES NOT STAND AND THE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 27 INTIMATION ISSUED BY THE ASSESSING OFFICER WAS BEYO ND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT AND SUCH ADJ USTMENT COULD NOT STAND IN THE EYE OF LAW.' 12. THE SAID PROPOSITION HAS BEEN APPLIED IN THE NEXT BUNCH OF APPEALS WITH LEAD ORDER IN VIDYA VARDHANI EDUCATION & RESEARCH FOUNDATION V. DY. CIT [2017] 88 TAXMANN.COM 894 (PUNE - TRIB.) AND ALSO IN SWAMI VIVEKANAND VIDYALAYA ( SUPRA ) AND MEDICAL SUPERINTENDANT RURAL HOSPITAL V. ACIT [IT APPEAL NOS.2072 & 2073 (PUN) OF 2017, ORDER DATED 21-12-2017], WHICH HAS B EEN RELIED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. 13. THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI ( SUPRA ) HAD ALSO LAID DOWN SIMILAR PROPOSITION THAT THE AMENDME NT TO SECTION 200A OF THE ACT W.E.F. 01.06.2015 HAS PROSPECTIVE EFFECT AND IS NOT APPLICABLE FOR THE PERIOD OF RESPECTIVE ASSESSMENT YEARS PRIOR TO 01.06.2015. TH E RELEVANT FINDINGS OF THE HON'BLE HIGH COURT ARE IN PARAS 21 AND 22, WHICH RE AD AS UNDER: '21. HOWEVER, IF SECTION 234E PROVIDING FOR FEE WAS BROUGHT ON THE STATE BOOK, KEEPING IN VIEW THE AFORESAID PURPOSE AND THE INTEN TION THEN, THE OTHER MECHANISM PROVIDED FOR COMPUTATION OF FEE AND FAILURE FOR PAY MENT OF FEE UNDER SECTION 200A WHICH HAS BEEN BROUGHT ABOUT WITH EFFECT FROM 1.6.2 015 CANNOT BE SAID AS ONLY BY WAY OF A REGULATORY MODE OR A REGULATORY MECHANISM BUT IT CAN RATHER BE TERMED AS CONFERRING SUBSTANTIVE POWER UPON THE AUTHORITY. IT IS TRUE THAT, A REGULATORY MECHANISM BY INSERTION OF ANY PROVISION MADE IN THE STATUTE BOOK, MAY HAVE A RETROACTIVE CHARACTER BUT, WHETHER SUCH PROVISION P ROVIDES FOR A MERE REGULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER UPON THE AUT HORITY WOULD ALSO BE A ASPECT WHICH MAY BE REQUIRED TO BE CONSIDERED BEFOR E SUCH PROVISIONS IS HELD TO BE RETROACTIVE IN NATURE. FURTHER, WHEN ANY PROVISI ON IS INSERTED FOR LIABILITY TO PAY ANY TAX OR THE FEE BY WAY OF COMPENSATORY IN NATURE OR FEE INDEPENDENTLY SIMULTANEOUSLY MODE AND THE MANNER OF ITS ENFORCEAB ILITY IS ALSO REQUIRED TO BE CONSIDERED AND EXAMINED. NOT ONLY THAT, BUT, IF THE MODE AND THE MANNER IS NOT EXPRESSLY PRESCRIBED, THE PROVISIONS MAY ALSO BE VU LNERABLE. ALL SUCH ASPECTS WILL BE REQUIRED TO BE CONSIDERED BEFORE ONE CONSIDERS R EGULATORY MECHANISM OR PROVISION FOR REGULATING THE MODE AND THE MANNER OF RECOVERY AND ITS ENFORCEABILITY AS RETROACTIVE. IF AT THE TIME WHEN THE FEE WAS PRO VIDED UNDER SECTION 234E, THE PARLIAMENT ALSO PROVIDED FOR ITS UTILITY FOR GIVING PRIVILEGE UNDER SECTION 271H(3) THAT TOO BY EXPRESSLY PUT BAR FOR PENALTY UNDER SEC TION 272A BY INSERTION OF PROVISO TO SECTION 272A(2), IT CAN BE SAID THAT A PARTICULA R SET UP FOR IMPOSITION AND THE PAYMENT OF FEE UNDER SECTION 234E WAS PROVIDED BUT, IT DID NOT PROVIDE FOR MAKING OF DEMAND OF SUCH FEE UNDER SECTION 200A PAYABLE UN DER SECTION 234E. HENCE, CONSIDERING THE AFORESAID PECULIAR FACTS AND CIRCUM STANCES, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LEARNED COUNSEL FOR RE SPONDENT-REVENUE THAT INSERTION OF CLAUSE (C) TO (F) UNDER SECTION 200A(1) SHOULD B E TREATED AS RETROACTIVE IN CHARACTER AND NOT PROSPECTIVE. 22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PER THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE, UNLESS IT IS EXPRESSLY P ROVIDED OR IMPLIEDLY DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE READ AS HAVING PR OSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 28 CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200 A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARA CTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIM ATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED E XERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF TH E RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200 A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNL ESS HE HAS MADE PAYMENT UNDER PROTEST.' 14. THE HON'BLE HIGH COURT THUS HELD THAT WHERE THE IM PUGNED NOTICES GIVEN BY REVENUE DEPARTMENT UNDER SECTION 200A OF THE ACT WE RE FOR THE PERIOD PRIOR TO 01.06.2015, THEN SAME WERE ILLEGAL AND INVALID. VID E PARA 27, IT WAS FURTHER HELD THAT THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT WERE FOR COMPUTATION AND INTIMATION FOR PAYMENT OF FEES UNDER SECTION 234E O F THE ACT AS THEY RELATE FOR THE PERIOD OF TAX DEDUCTED AT SOURCE PRIOR TO 01.06.201 5 WERE BEING SET ASIDE. 15. IN OTHER WORDS, THE HON'BLE HIGH COURT OF KARNATAK A EXPLAINED THE POSITION OF CHARGING OF LATE FILING FEES UNDER SECTION 234E OF THE ACT AND THE MECHANISM PROVIDED FOR COMPUTATION OF FEES AND FAILURE FOR PA YMENT OF FEES UNDER SECTION 200A OF THE ACT WHICH WAS BROUGHT ON STATUTE W.E.F. 01.0 6.2015. THE SAID AMENDMENT WAS HELD TO BE PROSPECTIVE IN NATURE AND HENCE, NOT ICES ISSUED UNDER SECTION 200A OF THE ACT FOR COMPUTATION AND INTIMATION FOR PAYME NT OF LATE FILING FEES UNDER SECTION 234E OF THE ACT RELATING TO THE PERIOD OF TAX DEDUC TION PRIOR TO 01.06.2015 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 COURT OF KARNATAKA ( SUPRA ), THERE IS NO MERIT IN OBSERVATIONS OF CIT(A) THAT IN THE PRES ENT CASE, WHERE THE RETURNS OF TDS WERE FILED FOR EACH OF THE QUARTERS AFTER 1ST DAY O F JUNE, 2015 AND EVEN THE ORDER CHARGING LATE FILING FEES WAS PASSED AFTER JUNE, 20 15, THEN THE SAME ARE MAINTAINABLE, SINCE THE AMENDMENT HAD COME INTO EFF ECT. THE CIT(A) HAS OVERLOOKED THE FACT THAT NOTICES UNDER SECTION 200A OF THE ACT WERE ISSUED FOR COMPUTING AND CHARGING LATE FILING FEES UNDER SECTI ON 234E OF THE ACT FOR THE PERIOD OF TAX DEDUCTED PRIOR TO 1ST DAY OF JUNE, 2015. THE SAME CANNOT BE CHARGED BY ISSUE OF NOTICES AFTER 1ST DAY OF JUNE, 2015 EVEN W HERE THE RETURNS WERE FILED BELATEDLY BY THE DEDUCTOR AFTER 1ST JUNE, 2015, WHE RE 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 BUNCH ES OF APPEALS AND SINCE THE AMENDMENT TO SECTION 200A OF THE ACT WAS PROSPECTIV E IN NATURE, THE ASSESSING OFFICER WHILE PROCESSING TDS RETURNS / STATEMENTS F OR THE PERIOD PRIOR TO 01.06.2015 WAS NOT EMPOWERED TO CHARGE LATE FILING FEES UNDER SECTION 234E OF THE ACT, EVEN IN CASES WHERE SUCH TDS RETURNS WERE FILED BELATEDLY A FTER JUNE, 2015 AND EVEN IN CASES WHERE THE ASSESSING OFFICER PROCESSED THE SAI D TDS RETURNS AFTER JUNE, 2015. ACCORDINGLY, WE HOLD THAT INTIMATION ISSUED B Y ASSESSING OFFICER UNDER SECTION 200A OF THE ACT IN ALL THE APPEALS DOES NOT STAND A ND THE DEMAND RAISED BY CHARGING LATE FILING FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 29 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 KOURANI ( SUPRA ). ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS POINTED OUT THAT THE ISSUE IS SETTLED IN FAVOUR OF ASSESSEE BY THE H ON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI ( SUPRA ). SINCE WE HAVE ALREADY RELIED ON THE SAID RATIO LAID DOWN BY THE HON'BLE HIGH COURT OF KARNATAKA, T HE CIT(A) HAS MIS-REFERRED TO BOTH DECISIONS OF HON'BLE HIGH COURT OF KARNATAKA A ND HON'BLE HIGH COURT OF GUJARAT; BUT THE CIT(A) HAS FAILED TO TAKE INTO CON SIDERATION THE SETTLED LAW THAT WHERE THERE IS DIFFERENCE OF OPINION BETWEEN DIFFER ENT 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 VEGETABLE PRODUCTS LTD. ( SUPRA ), IN THE ABSENCE OF ANY DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT. THE HON'BLE BOMBA Y HIGH COURT IN RASHMIKANT KUNDALIA V. UNION OF INDIA [2015] 54 TAXMANN.COM 200 HAD DECIDED THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SECTION 23 4E OF THE ACT AND HAD HELD THEM TO BE ULTRA VIRES BUT HAD NOT DECIDED THE SECOND ISSUE OF AMENDMENT B ROUGHT TO SECTION 200A OF THE ACT W.E.F. 01.06.2015. IN VIEW THEREOF, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE HIGH COURT OF KARNAT AKA AND PUNE BENCH OF TRIBUNAL IN SERIES OF CASES, WE DELETE THE LATE FILING FEES CHARGED 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 ASSESSEE BEING DELAYED FOR PERIOD OF DECEMBER, 2013 AND JULY, 2014. THE CIT(A) WHILE COMPUTING DELAY HAD TAKEN THE DATE OF INTIMAT ION UNDER SECTION 200A OF THE ACT AS THE BASIS, WHEREAS THE ASSESSEE HAD FILED AP PEALS 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 R EJECTED BY CPC ON THE SAME DAY. THE CIT(A) WAS OF THE VIEW THAT THERE WAS NO M ERIT IN CONDONATION OF DELAY, WHEREIN APPEALS WERE FILED BEYOND THE PERIOD PRESCR IBED. THE ASSESSEE HAD FILED 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 COMPUTED FROM THE DATE OF ORDER PASSED UNDER SECTION 154 OF THE ACT A ND 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 TH E CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL ( SUPRA ) AND VIDE PARA 15, ORDER DATED 21.12.2017 IT WAS HELD AS UNDER: '15. FURTHER, BEFORE PARTING, WE MAY ALSO REFER TO THE ORDER OF THE CIT(A) IN THESE TWO APPEALS. THE CIT(A) HAD DISMISSED THE APPEALS O F 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 LATE BEFORE HIM. HOWEVER, THE ASSESSEE HAD F ILED THE APPEAL BEFORE THE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 O F 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 DECIDED BY THE ASSESSING OFFICER ON 09- 06-2017. THE ASSESSEE FILED AN APPEAL AGAINST THE D ISMISSAL OF THE RECTIFICATION APPLICATION FILED UNDER SECTION 154 OF THE ACT. THE SAID FACT IS CLEAR FROM THE PERUSAL ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 30 OF FORM NO.35 WITH SPECIAL REFERENCE TO COLUMN 2(A) AND 2(B). IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE FIND NO MERI T IN THE ORDER OF CIT(A) IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL, SURG ANA IN DISMISSING THE APPEAL IN-LIMINE BEING FILED BEYOND THE PERIOD OF LIMITATI ON. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAVOUR OF ASSESSEE.' 20. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAV OUR OF ASSESSEE. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY ASSESS EE IN ALL APPEALS ARE ALLOWED. 21. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE ALL OWED. AS RIGHTLY OBSERVED BY CO-ORDINATE BENCH IN PARA-17 , THE DECISION OF HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA V. UNION OF INDIA [2015] 54 TAXMANN.COM 200 DEAL ONLY WITH EXAMINING THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SECTION 234E OF THE ACT A ND DO NOT DEAL WITH EFFECT OF AMENDMENT IN SECTION 200A W.E.F. 01.06.20 15. THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAID VIEW OF CO-ORD INATE BENCH OF PUNE TRIBUNAL, WE HOLD THAT VIEW FAVORABLE TO THE ASSESS EE WAS TO BE ADOPTED AND THEREFORE, THE LEVY OF FEES U/S 234E FOR ANY PE RIOD PRIOR TO 01/06/2015 WOULD NOT BE SUSTAINABLE IN THE EYES OF LAW. WE ORDER SO. 4. IN THE RESULT, THE APPEAL STANDS ALLOWED TO THE EXTENT INDICATED IN THE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH DECEMBER, 2019 SD/- SD/- (MAHAVIR SINGH) (MA NOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 10/12/2019 SR.PS, JAISY VARGHESE ITA NO.4902/MUM/2018 ASSESSMENT YEAR :2013-14 NATIONAL LAMINATE CORPORATION 31 !'! / COPY OF THE ORDER FORWARDED TO : 1. %' / THE APPELLANT 2. ()%' / THE RESPONDENT 3. 0 ( ) / THE CIT(A) 4. 0 / CIT CONCERNED 5. 12(+3 , 3 , / DR, ITAT, MUMBAI 6. 2456 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.