MOHD. NAYEEM SIDDIQUI AKASH TIMBER TRADERS, THANE V. DCIT (CPC), GHAZIABAD

ITA 4959/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1757 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 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: 27-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIKLD
• Keywords: Charitable institution; Retrospective amendment; Difference of opinion; TDS; Set aside
• Section: 234E; 200A; 201; 2(A); 154

Judgement Text

ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 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.4959/MUM/2018 ( / ASSESSMENT YEAR : 2013-14 ) MOHD. NAYEEM SIDDIQUI [PROP. AKASH TIMBER TRADERS] NEAR GOLDEN DYES CO. EXPRESS HIGHWAY, HARDAS NAGAR THANE (W)-400 602. / VS. D CIT TDS, CPC AAYKAR BHAVAN, SECTOR-3, VAISHALI, GHAZIABAD U.P. 201 010. $% ./ ./PAN/TAN ATJPS-6472-J / PNEM-15076-F ( %' /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)-1, THANE [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. ITA 348/2014-15 DATED 14/06/2018 ON FOLLOWING G ROUNDS OF APPEAL: - ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 2 (1) THE LEARNED C.I.T. (A) HAS ERRED IN CONFIRMING THE PENALTY WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. (2) THE LEARNED C.I.T. (A) HAS ERRED IN REJECTING THE GENUINE REASON OF APPELLANT REPRESENTATIVE. (3) THE ORDER OF THE C.I.T. (A) IN THIS CASE IS BAS ED UPON SURMISES AND CONJECTURES AND FAR REMOVED FROM THE FACTS OF THE CASE. 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 AN IN TIMATION U/S 200A OF THE INCOME TAX ACT, 1961 RECEIVED FROM AO-TDS CPC, VAISHALI, GHAZIABAD FOR Q-4 FOR AY 2013-14, THE ASSESSEE WAS SADDLED WITH LATE FILING FEES U/S 234E FOR RS.33,349/- AND INTEREST O F RS.1,485/- ON ACCOUNT OF LATE PAYMENT. THE SAID FEE U/S 234E WAS LEVIED O N ACCOUNT OF LATE FILING OF QUARTERLY ELECTRONIC TDS RETURN, AS PROVI DED U/S 200(3) OF THE ACT READ WITH RULE 31A OF THE INCOME TAX RULES. 1.4 THE ASSESSEE CHALLENGED THE LEVY OF FEES U/S 23 4E AS WELL AS LEVY OF INTEREST BEFORE LD. CIT(A) VIDE IMPUGNED ORDER D ATED 14/06/2018, INTER-ALIA, BY RELYING UPON THE DECISION OF HONBLE KARNATAKA HIGH COURT RENDERED IN FATEHRAJ SINGHVI V/S UNION OF INDIA (73 TAXMANN.COM 252 26/08/2016). HOWEVER, LD. CIT(A) REJECTED THE SAME SINCE THE CONSTITUTIONAL VALIDITY OF SEC. 234E WAS ALREADY UP HELD BY HONBLE BOMBAY HIGH COURT IN ITS DECISION TITLED AS RASHMIKANT KUNDALIA V/S UNION OF INDIA (373 ITR 268). AGGRIEVED, THE ASSESSEE IS UNDER APPEAL BEFORE US. ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 3 2.1 UPON CAREFUL CONSIDERATION, WE FIND THAT THE P ROVISIONS 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. 2.2 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 PETITION NO. 618/2015 FILED BY SHREE AYAPPA EDUCATIONAL CHARITABLE TRUST . 2.3 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 THE HONBLE COURT HAS DECLINED TO CONCUR WITH THE A FORESAID ADJUDICATION OF HONBLE KARNATAKA HIGH COURT AND UPHELD THE LEVY OF FEES U/S 234E SINCE ITS INTRODUCTION W.E.F. 01/07/2012. 2.4 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 ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 4 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 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: ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 5 '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 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. ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 6 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. 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 ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 7 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 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 ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 8 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. 2.5 SO FAR AS THE LEVY OF INTEREST OF RS.1,485/- IS CONCERNED, THE SAME BEING MANDATORY AND CONSEQUENTIAL IN NATURE, WOULD REQUIRE NO INTERREFERENCE ON OUR PART. THE ACTION OF REVENUE I N LEVYING THE SAME IS UPHELD. 3. 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 !'! / 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. 245 / GUARD FILE ITA NO.4959/MUM/2018 ASSESSMENT YEAR:2013-14 MOHD. NAYEEM SIDDIQUI 9 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.