Station Headquarters (Army), Jodhpur V. ACIT, CPC-TDS, Ghaziabad and JCIT, Range-TDS, Jodhpur

ITA 498/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4351 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; Retrospective amendment; Right to appeal; Condonation of delay; TDS; Set aside
• Section: 40(a)(ia); 195; 250; 54; 6; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NOS.492 TO 493/JODH/2018 (ASSESSMENT YEARS-2013-14) & ITA NOS.494 TO 496/JODH/2018 (ASSESSMENT YEARS-2014-15) & ITA NOS.497 TO 500/JODH/2018 (ASSESSMENT YEARS-2015-16) STATION HEADQUARTERS (ARMY, JODHPUR MULTAN LINES ARMY AREA, JODHPUR, PIN-342001 (PAN: JDHSI 1181 C) VS ASSISTANT COMMISSIONER OF INCOME-TAX, CPC-TDS, GHAZIABAD. (APPELLANT) (RESPONDENT) & ITA NOS.414 TO 417/JODH/2018 (ASSESSMENT YEARS-2014-15) DENA BANK , K.E.M. ROAD, BIKANEER (PAN: JDHDO1714G) VS INCOME-TAX OFFICER, TDS, CPC, GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI RAJENDRA JAIN, ADVOCATE REVENUE BY SH. P.K. SINGI, DR 2 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 & ITA NO.353/JODH/2018 (ASSESSMENT YEAR-2016-17) M/S. SPRINGCITY CLUB RESIDENCY LLP, C/O AGDARWAL GUPTA & MAHESHWARI, CAS 12, AGARSEN NAGAR, UDAIPUR. (PAN: ACRFS9253N) VS DEPUTY COMMISSIONER OF INCOME-TAX, TDS CIRCLE, UDAIPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY N O N E REVENUE BY SH. P.K. SINGI, DR & ITA NOS.207 & 208/JODH/2018 (ASSESSMENT YEARS-2013-14) SARVODAYA MANAV SEVA CHARITABLE TRUST, C/O SHRI MAHESH GEHLOT, CA, RAJASTHAN HIGH CO7URT, 4, SUMANAND, SHREE GOVINDAM, KHEMA KA KUA, PAL ROAD, JODHPUR, RAJ- 342008. (PAN: JDHSI3003E) VS DEPUTY COMMISSIONER OF INCOME-TAX, CPC-TDS, GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI MAHESH GEHLOT, ADVOCATE REVENUE BY SH. P.K. SINGI, DR & ITA NOS.71 TO 73/JODH/2019 (ASSESSMENT YEARS-2015-16) 3 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 MOTOR ACCIDENT CLAIM TRIBUNAL, C/O R. L. KUNAWAT & CO. 65, PANCH SHEEL MARG, NEAR TOWN HALL, UDAIPUR (PANJDHMI1911E) VS DEPUTY COMMISSIONER OF INCOME-TAX, CPC-TDS, GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI AMIT KOTHARI, CA REVENUE BY SH. P.K. SINGI, DR DATE OF HEARING 07.05.2019 DATE OF PRONOUNCEMENT 10.05.2019 O R D E R PER BENCH THESE BUNCH OF 19 (NINETEEN) APPEALS FILED BY DIFFE RENT ASSESSEES ARE AGAINST THE RESPECTIVE ORDERS OF LD. CIT(A) REL ATING TO DIFFERENT ASSESSMENT YEARS AGAINST RESPECTIVE INTIMATIONS ISS UED U/S. 200A(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT). SINCE ALL THE APPEALS ARE RELATING TO DIFFERENT ASSESSEES HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER AS THE ISSUE RAISED IN ALL THE APPEALS ARE SIMILAR. 2. THE ISSUE ARISING OUT OF ALL THE APPEALS BEFORE US IS AGAINST THE INTIMATION ISSUED U/S. 200A OF THE ACT IN LEVYING LATE FEES PA YABLE U/S. 234E OF THE ACT. ACCORDING TO THE ASSESSEE, THE PARLIAMENT HAS INSER TED CLAUSE (C) OF SEC. 200A(1) OF THE ACT SPECIFICALLY W.E.F. 01.06.2015 AND WHEN THE RE IS NOTHING TO SUGGEST THAT THE SAID AMENDMENT WAS CLARIFIICATORY OR RETROSPECTIVE IN NATURE, THE AO HAD POWER TO LEVY LATE FEE U/S. 234E OF THE ACT ONLY FROM 01.06. 2015 AND COULD NOT HAVE LEVIED 4 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 LATE FEE U/S. 234E OF THE ACT IN THE INTIMATION ISS UED U/S. 200A OF THE ACT IN RESPECT OF TDS STATEMENT FILED BY THE ASSESSEE FOR THE PERI OD PRIOR TO 01.06.2015, 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE OUT OF PAYMENTS MADE ON ACCOUNT OF SALARY, I NTEREST ETC. FOR THE RESPECTIVE QUARTERS IN THE ACCOUNTING PERIOD. THE ACT REQUIRE D THE ASSESSEE TO FILE QUARTERLY TDS RETURNS INTIMATING THE TAX DEDUCTED AT SOURCE F ROM VARIOUS PAYMENTS MADE IN EACH OF THE QUARTERS. THE SAID TDS RETURNS ARE MAN DATED TO BE FILED WITHIN THE STIPULATED PERIOD. ADMITTEDLY, IN THE PRESENT SET OF APPEALS, TDS RETURNS WERE FILED BELATEDLY THOUGH TDS WAS DULY DEDUCTED AND REMITTED TO THE GOVERNMENT TREASURY IN TIME AND IT WAS BROUGHT TO OUR NOTICE THAT FOR B ELATED REMITTANCE, INTEREST HAS BEEN DULY REMITTED IN ACCORDANCE TO LAW. HOWEVER, T HE AO WHILE PROCESSING THE TDS RETURNS/STATEMENT ISSUED INTIMATION TO THE RESPECTI VE ASSESSEES U/S. 200A OF THE ACT AND LEVIED LATE FILING FEE U/S. 234E OF THE ACT. A GGRIEVED BY THE SAID INTIMATION, THE ASSESSEE FILED APPEALS BEFORE THE LD. CIT(A) WHICH WERE DISMISSED. AGGRIEVED, THE ASSESSEES ARE BEFORE US. 4. AT THE OUTSET ITSELF, THE LD. DR ARGUED THAT T HE APPEAL OF THE ASSESSEE WAS NOT MAINTAINABLE IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDI A (2016) 284 CTR 0175 (RAJ) DATED 28.07.2015 WHEREIN WE NOTE THE HONBLE HIGH COURT DELIVERED THE JUDGMENT WHEREIN THE ASSESSEE HAD CHALLENGED THE CONSTITUTI ONAL VALIDITY OF SECTION 234E OF THE ACT AND WE NOTE THAT THE FOLLOWING RELIEFS THE ASSESSEE PRAYED FOR: 1. THAT HONBLE COURT MAY DECLARE SECTION 234E OF THE INCOME TAX ACT, 1961 AS UNCONSTITUTIONAL BY ISSUING NECESSARY DIRECTIONS TO THE RESPONDENTS; 2. THAT ALTERNATIVELY IT IS PRAYED THAT BENEFIT OF CIRCULAR NO. 07/2014 DATED MARCH 04, 2014 F. NO. 275/27/2013-IT(B) ISSUED BY T HE RESPONDENT NO. 2, WHEREIN, EX POST FACTO EXTENDED THE DUE DATE FOR FILING TDS/TCS STATEMENT FOR FINANCIAL YEAR 2012- 13 AND 2013-14 FOR GOVERNMENT DEDUCTORS, MAY BE EXT ENDED TO OTHER DEDUCTORS ALSO; 5 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 3. THAT NECESSARY DIRECTION MAY KINDLY BE ISSUED TO THE RESPONDENT NO. 3 TO QUASH THE DEMAND RAISED IN RESPECT OF ALL THE PETITIONERS AS STATED IN ANNEXURE 1 TO ANNEXURE 7. 4. THAT ANY OTHER RELIEF DEEMED BENEFICIAL BE ALSO AWARDED. 5. WE NOTE THAT THE HONBLE HIGH COURT DECIDED THE CONSTITUTIONAL VALIDITY OF SEC. 234E OF THE ACT AFTER TAKING NOTE OF THE DECIS ION OF THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA & ORS. VS. UNION OF IN DIA & ORS. (2015) 229 TAXMAN 596 (BOM) WHICH WAS DECIDED ON 06.02.2015 WHEREIN T HE HONBLE BOMBAY HIGH COURT HAS UPHELD THE VALIDITY OF SECTION 234E OF TH E ACT AND THEREAFTER, THE HONBLE JURISDICTIONAL HIGH COURT UPHELD THE CONSTITUTIONAL ITY OF SECTION 234E OF THE ACT HAS CLEARLY HELD THAT WE DO NOT IN EXERCISE OF THE POWERS UNDER ARTICLE 2 26 OF THE CONSTITUTION OF INDIA, FIND ANY VALID REASONS OR J USTIFICATION TO INTERFERE WITH COMPENSATORY FEES IMPOSED FOR LATE FILING OF THE T DS RETURNS ON FLAT RATES. THE ABSENCE OF ANY PROVISION FOR CONDONATION OF DELAY A ND APPEAL PRIOR TO AMENDMENTS ALSO DID NOT MAKE IMPOSITION OF LATE FEES BY SEC. 2 34E TO BE ULTRA VIRES. THE WRIT PETITION HAS NO MERITS AND IS ACCORDINGLY DISMISSED . WE NOTE THAT THUS THE HONBLE JURISDICTIONAL HIGH COURT IN THIS CASE HAS UPHELD T HE CONSTITUTIONAL VALIDITY OF THE PROVISION OF SECTION 234E OF THE ACT, HOWEVER, THE QUESTION BEFORE US IN THESE APPEAL THAT HAS BEEN RAISED IS WHETHER THE IMPUGNED INTIMATION GIVEN BY THE AO, TDS AGAINST ALL THE APPELLANTS U/S. 200A OF THE ACT ARE SO FAR AS THEY ARE FOR THE PERIOD PRIOR TO 01.06.2015 CAN BE SAID AS WITHOUT A NY AUTHORITY UNDER THE LAW. WE NOTE THAT THE ISSUE HAS BEEN DEALT IN DETAIL IN THE ORDER OF THE TRIBUNAL IN MAHARASTRA CRICKET ASSLCIATION & ORS. VS. DCIT (20 16) 182 TTJ (PUNE) A BENCH BY DECISION DATED 21.09.2016 WHEREIN THE TRIBUNAL HAS HELD AS UNDER: 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE ARISING IN THIS BUNCH OF APPEALS IS AGAINST LEVY OF FEES UNDER S. 234E OF THE ACT. IN ORDER TO ADJUDICATE THE ISSUE, FIRST REFERENCE IS BEING MADE TO THE RELEVANT PROVISIONS OF THE ACT. UNDER CHAPTER XVI HEADED COLLECTION AND RECO VERY OF TAXES AND UNDER CL. B, DEDUCTION AT SOURCE, THE STATUTE LAYS DOWN THE DUTY OF THE PAYER OF CERTAIN AMOUNTS TO DEDUCT TAX AT SOURCE UNDER SS. 192 TO 194LD, 195 TO 196D OF THE ACT. UNDER S. 198 6 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 OF THE ACT, IT IS PROVIDED THAT THE TAX DEDUCTED AT SOURCE SHALL FOR THE PURPOSE OF COMPUTING THE INCOME OF ASSESSEE BE DEEMED TO BE IN COME RECEIVED. UNDER S. 199 OF THE ACT, IT IS FURTHER PROVIDED THAT ANY DEDUCTION MADE IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER AND PAID TO THE CENTRAL GOVER NMENT SHALL BE TREATED AS PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WHOSE I NCOME THE DEDUCTION WAS MADE. THE SUM REFERRED TO IN SUB-S. (1A) OF S. 192 OF THE ACT AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS THE TAX PAID ON BEHA LF OF THE PERSON IN RESPECT OF WHOSE INCOME SUCH PAYMENT OF TAX HAS BEEN MADE. 17. SECTION 200 OF THE ACT LAYS DOWN THE DUTY OF TH E PERSON DEDUCTING TAX, WHICH READS AS UNDER:- 200. (1) ANY PERSON DEDUCTING ANY SUM IN ACCORDANC E WITH THE FOREGOING PROVISIONS OF THIS CHAPTER SHALL PAY WITHIN THE PRE SCRIBED TIME, THE SUM SO DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. (2) ANY PERSON BEING AN EMPLOYER, REFERRED TO IN S UB-SECTION (1A) OF SECTION 192 SHALL PAY, WITHIN THE PRESCRIBED TIME, THE TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. (2A) IN CASE OF AN OFFICE OF THE GOVERNMENT, WHERE THE SUM DEDUCTED IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CH APTER OR TAX REFERRED TO IN SUB-SECTION(1A) OF SECTION 192 HAS BEEN PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHOUT THE PRODUCTION OF A CHALLAN, THE PAY AND ACCOUNTS OFFICER OR THE TREASURY OFFICER OR THE CHEQUE DRAWI NG AND DISBURSING OFFICER OR ANY OTHER PERSON, BY WHATEVER NAME CALLED, WHO I S RESPONSIBLE FOR CREDITING SUCH SUM OR TAX TO THE CREDIT OF THE CENT RAL GOVERNMENT, SHALL DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY, OR TO THE PERSON AUTHORISED BY SUCH AUTHORITY, A STATEMEN T IN SUCH FORM, VERIFIED IN SUCH MANNER, SETTING FORTH SUCH PARTICULARS AND WIT HIN SUCH TIME AS MAY BE PRESCRIBED. (3) ANY PERSON DEDUCTING ANY SUM ON OR AFTER THE 1S T DAY OF APRIL, 2005 IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CH APTER OR, AS THE CASE MAY BE, ANY PERSON BEING AN EMPLOYER REFERRED TO IN SUB -SECTION (1A) OF SECTION 192 SHALL, AFTER PAYING THE TAX DEDUCTED TO THE CRE DIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME, PREPARE SUCH STATEMENTS FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY OR THE PERSON AUTHO RISED BY SUCH AUTHORITY SUCH STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MA NNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRE SCRIBED: PROVIDED THAT THE PERSON MAY ALSO DELIVER TO THE PR ESCRIBED AUTHORITY A CORRECTION STATEMENT FOR RECTIFICATION OF ANY MISTA KE OR TO ADD, DELETE OR UPDATE THE INFORMATION FURNISHED IN THE STATEMENT D ELIVERED UNDER THIS SUB- SECTION IN SUCH FORM AND VERIFIED IN SUCH MANNER AS MAY BE SPECIFIED BY THE AUTHORITY. 7 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 18. UNDER SECTION 200(1) OF THE ACT, IT IS PROVIDED THAT ANY PERSON DEDUCTING ANY SUM IN ACCORDANCE WITH THE PROVISIONS OF THE CHAPTER SH ALL PAY WITHIN THE PRESCRIBED TIME, THE SUM SO DEDUCTED TO THE CREDIT OF THE CENTRAL GO VERNMENT OR AS THE BOARD DIRECTS. UNDER SECTION 200(2) OF THE ACT, ANY PERSON BEING A N EMPLOYER, AS REFERRED TO IN SUB- SECTION (1A) OF SECTION 192 OF THE ACT SHALL PAY, W ITHIN THE PRESCRIBED TIME, THE TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOAR D DIRECTS. UNDER SUB-SECTION (2A) OF THE ACT, IT IS PROVIDED THAT WHERE THE SUM HAS B EEN DEDUCTED IN ACCORDANCE WITH FOREGOING PROVISIONS OF THE 19 CHAPTER, BY THE OFFI CE OF THE GOVERNMENT, THEN DUTY IS UPON THE TREASURY OFFICER OR THE DRAWING & DISBURSI NG OFFICER OR ANY OTHER PERSON, TO DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITIES, OR TO THE PERSON AUTHORIZED BY SUCH AUTHORITY, STATEMENT IN S UCH FORM, VERIFIED IN SUCH MANNER, SETTING FORTH SUCH PARTICULARS WITHIN SUCH TIME AS MAY BE PRESCRIBED. UNDER SECTION 200(3) OF THE ACT, SIMILAR RESPONSIBILITY IS ON ANY PERSON DEDUCTING ANY SUM ON OR AFTER FIRST DAY OF APRIL, 2005 IN ACCORDANCE WITH FOREGOI NG PROVISIONS OF THE CHAPTER, INCLUDING ANY PERSON AS AN EMPLOYER REFERRED TO IN SECTION 192(1A) OF THE ACT. THE ONUS IS UPON SUCH PERSON THAT HE SHALL AFTER PAYING THE TAX TO THE CREDIT OF CENTRAL GOVERNMENT WITHIN PRESCRIBED TIME, PREPARE SUCH STA TEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITY OR ANY PERSON SO AUTHORIZED, SUCH STATEME NT IN SUCH FORM AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PROVIDED. THE DUTY IS UPON A PERSON DEDUCTING ANY S UM IN ACCORDANCE WITH VARIOUS PROVISIONS UNDER THE CHAPTER AND ALSO UPON AN EMPLO YER WHO IS MAKING DEDUCTION OUT OF THE PAYMENTS MADE TO THE EMPLOYEES, THEN SUB-SEC TION (3) REQUIRES THAT THE DEDUCTOR IS TO PREPARE A STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED, WHICH IS TO BE DELIVERED TO THE PRESCRIBED AUTHORITY, IN SUCH F ORM AND VERIFIED AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED. THE SAID STA TEMENT IS TO BE DELIVERED WITHIN SUCH TIME AS MAY BE PRESCRIBED. 19. RULE 31A OF THE INCOME TAX RULES, 1962 (IN SHOR T THE RULES) PROVIDES THAT EVERY PERSON WHO IS RESPONSIBLE FOR DEDUCTION OF TAX UNDE R CHAPTER XVIIB SHALL IN ACCORDANCE WITH THE PROVISIONS OF SECTION 200(3) OF THE ACT, DELIVER OR CAUSE TO BE DELIVERED, THE QUARTERLY STATEMENTS TO THE DIRECTOR GENERAL OF INCOME TAX (SYSTEMS) OR THE PERSONS AUTHORIZED BY THEM I.E. IN RESPECT O F DEDUCTIONS UNDER VARIOUS PROVISIONS OF THE CHAPTER XVIIB. THE RULE FURTHER 2 0 PROVIDES THAT THE STATEMENTS REFERRED TO IN SUB-RULE (1) ARE TO BE DELIVERED QUA RTERLY AND THE STIPULATED PERIOD OF DUE DATE OF FILING THE SAID STATEMENT IN RESPECT OF DEDUCTOR BEING AN OFFICE OF THE GOVERNMENT AND THE DEDUCTOR BEING OTHER THAN GOVERN MENT, ARE PROVIDED. THE SUB- RULE (3) OF RULE 31A OF THE RULES FURTHER PROVIDES THAT THE STATEMENT REFERRED TO IN SUB-RULE (1) MAY BE FURNISHED IN ANY OF THE FOLLOWI NG MANNERS I.E. BY WAY OF FURNISHING THE STATEMENT IN PAPER FORM OR FURNISHING THE STATE MENT ELECTRONICALLY UNDER DIGITAL SIGNATURE OR AFTER VERIFICATION. INITIALLY, SUCH ST ATEMENT HAD TO BE FURNISHED IN PAPER FORM AND LATER BY WAY OF AMENDMENT, THE PROCEDURE F OR FURNISHING THE STATEMENT ELECTRONICALLY WAS PROVIDED. ONCE THE STATEMENT HAS BEEN SO SUBMITTED BY THE DEDUCTOR OF TAX DEDUCTED AT SOURCE, THEN PROCESSING OF STATEMENT IS AS PER THE PROVISIONS OF SECTION 200A OF THE ACT. THE SAID SEC TION WAS INSERTED BY THE FINANCE (NO.2) ACT, 2009 W.E.F. 01.04.2010. THE SAID SECTIO N 200A OF THE ACT READS AS UNDER:- 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SO URCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY S UM (HEREAFTER REFERRED 8 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL B E COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMA TION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DU E TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED U NDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTI ON 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED A ND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR : PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YE AR IN WHICH THE STATEMENT IS FILED. EXPLANATION.FOR THE PURPOSES OF THIS SUB-SE CTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHA LL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTR Y OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOU RCE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT. (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE T AX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE S AID SUB-SECTION. 20. SECTION 200A OF THE ACT LAYS DOWN THE MANNER IN WHICH THE STATEMENTS OF TAX DEDUCTED AT SOURCE ARE TO BE PROCESSED FOR ISSUING THE INTIMATION. FIRST OF ALL, THE SUMS DEDUCTIBLE UNDER THE CHAPTER ARE TO BE COMPUTE D AND INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF SUCH SUMS DEDUCTIBLE AS CO MPUTED IN THE STATEMENTS AS PER CLAUSE (A) AND (B) UNDER SECTION 200A(1) OF THE ACT . CLAUSES (C) TO (F) REPRODUCED ABOVE WERE SUBSTITUTED FOR CLAUSES (C) TO (E) BY TH E FINANCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO THE SUBSTITUTION, CLAUSES (C) TO (E) READ AS UNDER:- 9 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND D UE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED UNDE R CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR. 21. AS PER NEWLY SUBSTITUTED CLAUSE (C) W.E.F. 01.0 6.2015, THE FEES, IF ANY, IS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OF T HE ACT. HOWEVER, UNDER THE EARLIER CLAUSE (C), THERE WAS NO SUCH PROVISION. 22. SECTION 234E(1) OF THE ACT PROVIDES THAT WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED, A STATEMENT WITHIN TIME PRESCRIBED IN SE CTION 200(3) OF THE ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT, HE SHALL BE LIABLE TO P AY, BY WAY OF FEES, SUM OF RS.200/- FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. THE SAID PR OVISIONS WERE INSERTED BY THE FINANCE ACT, 2012 W.E.F. 01.07.2012. 22 UNDER SUB-SECTION (2), I T IS FURTHER PROVIDED THAT THE AMOUNT OF FEES REFERRED TO IN SUB-SECTION (1) SHALL NOT EXCEE D THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTABLE, AS THE CASE MAY BE. SUB-SECTION (3) FURTHER LAYS DO WN THAT THE AMOUNT OF FEES REFERRED TO IN SUB-SECTION (1) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB-SECTION 200(3) OF THE ACT OR TH E PROVISO TO SECTION 206C(3) OF THE ACT. THE PROVISIONS OF SAID SECTION HAVE BEEN MADE APPLICABL E TO A STATEMENT TO BE DELIVERED OR CAUSE TO BE DELIVERED ON OR AFTER THE FIRST DAY OF JULY, 2012. 23. READING THE ABOVE SAID PROVISIONS OF THE ACT, IT TRANSPIRES THAT WHERE TAX HAS BEEN DEDUCTED AT SOURCE BY A DEDUCTOR OUT OF THE ACCOUNT OF DEDUCTEE, THEN THE ONUS IS UPON THE DEDUCTOR UNDER SECTION 200 OF THE ACT TO PREPARE A STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER WHICH IS PRESCRIBED UNDER THE ACT IN WH ICH THE PARTICULARS OF TAX DEDUCTION AT SOURCE ARE TO BE PROVIDED AND THE SAID STATEMENT IS TO BE DELIVERED OR CAUSE TO BE DELIVERED WITHIN SUCH TIME AS MAY BE PRESCRIBED. RULE 31A OF THE RULES PROVIDED THE TIME LIMIT FOR THE FURNISHING OF STATEMENT FOR TAX DEDUCTION AT SOURCE ON QUARTERLY BASIS. SECTION 234E OF THE ACT LEVIES FEES FOR DEFAULT IN FURNISHING THE STATEMENT S OF TAX DEDUCTED AT SOURCE. SUCH FEES IS TO BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERE D A STATEMENT IN ACCORDANCE WITH SECTION 200(3) OF THE ACT OR PROVISO TO SECTION 206C(3) OF THE ACT. IN OTHER WORDS, IN CASE THE ASSESSEE HAS DEFAULTED IN NOT DELIVERING THE STATEMENT OR CA USING TO DELIVER THE STATEMENT WITHIN TIME PRESCRIBED, THEN HE IS LIABLE TO PAY THE FEES WHICH IS SO PRESCRIBED UNDER THE ACT AND SUCH FEES SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR CO LLECTABLE AT SOURCE BUT THE SAME HAS TO BE PAID ALONG WITH STATEMENT WHICH IS TO BE DELIVERED UNDER THE PROVISIONS OF SECTION 200(3) OF THE ACT. THOUGH THE STATEMENT OF TAX DEDUCTED AT SO URCE HAS TO BE FURNISHED BY THE DEDUCTOR, NO DOUBT, UNDER SECTION 200 OF THE ACT, BUT THE SAM E HAS TO BE PROCESSED BY THE 23 PRESCRIBED AUTHORITY AS PER PROVISIONS OF SECTION 200A OF THE ACT. IN CASE THERE IS ANY VARIATION IN THE TAX, SUM DEDUCTIBLE UNDER THE CHAPTER AND / OR THEIR PAY MENT, THE ASSESSING OFFICER IS EMPOWERED TO MAKE ADJUSTMENTS IN THIS REGARD AND ALSO REJECT INCORRECT CLAIM MADE BY THE DEDUCTOR WHICH IS APPARENT FROM THE INFORMATION IN THE STATE MENT FILED BY THE DEDUCTOR. FURTHER, THE 10 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 INCOMETAX AUTHORITY IS AUTHORIZED TO CHARGE INTERES T, IF ANY, AND THE SAME SHALL BE COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE IN ADDITION TO THE AMOUNT OF TAX DEDUCTED AT SOURCE, WHICH IS TO BE PAID TO THE ACCOUNT OF TREASURY BY THE DEDUCT OR. IN CASE OF ANY DEFAULT, INTEREST IS TO BE CHARGED AGAINST SUCH DEDUCTOR AND THE SAME IS TO BE COMPUTED AS PER PROVISIONS OF SECTION 200A(1)(B) OF THE ACT. FURTHER, IN ADDITION TO BOTH THESE AMOUNTS, CLAUSE (C) TO SECTION 200A OF THE ACT PROVIDES FEES TO BE LEVIED WHICH SHALL BE C OMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OF THE ACT. THE SAID PROVISION TO C HARGE FEES BY THE PRESCRIBED AUTHORITY HAS BEEN SUBSTITUTED FOR EARLIER PROVISIONS BY THE FINA NCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO THE SAID SUBSTITUTION THOUGH THE PROVISIONS OF SECTION 234E OF THE ACT FOR PAYMENT OF FEES FOR DEFAULT IN FURNISHING THE STATEMENT WERE INSERTED B Y THE FINANCE ACT, 2012 W.E.F. 01.07.2012, THE PRESCRIBED AUTHORITY DID NOT HAVE THE POWER TO CHARGE THE SAID FEES, WHILE PROCESSING THE QUARTERLY STATEMENTS / RETURNS UNDER SECTION 200A O F THE ACT. 24. NOW, LOOKING AT VARIOUS PROVISIONS OF THE ACT, THE ISSUE NEEDS TO BE ADJUDICATED IN THE CASE OF ASSESSEE, WHEREIN ADMITTEDLY, TDS RETURNS WHICH WERE DEEMED TO BE FILED BY THE ASSESSEE WERE FILED AFTER DELAY AND THE QUESTION WAS WHETHER THE ASSESSING OFFICER WHICH PROCESSING THE INTIMATION UNDER SECTION 200A OF THE ACT COULD CHARGE LATE FEE UNDER THE PROVISIONS OF SECTION 234E OF THE ACT. THE ASSESSEE CLAIMS THAT T HE ASSESSING OFFICER AT BEST COULD CHARGE THE DIFFERENCE IN TAX DEDUCTED AND NOT PAID IN TREA SURY FROM THE DEDUCTOR AND / OR ANY INTEREST PAYABLE ON SUCH DEDUCTION OF TAX AT SOURCE . 24 HOWEVER, TILL SUBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2 015 W.E.F. 01.06.2015, THE ASSESSING OFFICER WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. THE CASE OF REVENUE ON THE OTHER HAND, WAS THAT IT WAS THE DUTY OF DEDUCTOR WH ILE FURNISHING THE STATEMENT UNDER SECTION 200(3) OF THE ACT TO DEPOSIT THE FEES REFERRED TO I N SECTION 234E(1) OF THE ACT. THE LEARNED CIT- DR STRESSED THAT FEES REFERRED TO IN SUB-SECTION (1 ) HAD TO BE PAID WHILE DELIVERING OR CAUSING TO DELIVER THE STATEMENT IN ACCORDANCE WITH PROVISI ONS OF SECTION 200(3) OF THE ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT. HOWEVER, VAR IOUS REGULATIONS AND THE STATUTORY PROVISIONS IN THIS REGARD POINT OUT THAT UNDOUBTEDL Y, THE RESPONSIBILITY OF THE DEDUCTOR WAS TO DEPOSIT THE TAX DEDUCTED AT SOURCE IN TIME AND IF N OT SO, THEN WITH INTEREST AND CONSEQUENTLY, WHERE THE TAX WAS NOT PAID IN TIME AND INTEREST WAS NOT PAID IN TIME AND THEN, WHERE THE STATEMENT OF TAX DEDUCTED AT SOURCE COULD NOT BE FI LED BEFORE THE PRESCRIBED AUTHORITY WITHIN STIPULATED TIME, THE ASSESSEE WAS LIABLE TO LEVY OF FEES UNDER SECTION 234E OF THE ACT. HOWEVER, IN CASE ANY DEFAULT OCCURS DUE TO THE NON- PAYMENT OF FEES BY THE ASSESSEE IN THIS REGARD, THEN THE PROVISIONS WHICH HAS TO BE CONSIDE RED IS SECTION 200A(1)(C) OF THE ACT. THE POWER TO CHARGE / COLLECT FEES AS PER PROVISIONS OF SECTION 234E OF THE ACT WAS VESTED WITH THE PRESCRIBED AUTHORITY UNDER THE ACT ONLY ON SUBSTITU TION OF EARLIER CLAUSE (C) TO SECTION 200A OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. ONCE ANY PROVISION OF THE ACT HAS BEEN MADE APPLICABLE FROM A RESPECTIVE DATE, THEN THE RE QUIREMENT OF THE STATUTE IS TO APPLY THE SAID PROVISIONS FROM THE SAID DATE. 25. IN RESPECT OF THE ISSUE RAISED BEFORE US, IT IS CLEAR THAT THE PRESCRIBED AUTHORITY HAS BEEN VESTED WITH THE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT ONLY WITH REGARD TO LEVY OF FEES BY THE SUBSTITUTION MADE BY FINANCE (NO.2) ACT , 2015 W.E.F. 01.06.2015. ONCE THE POWER HAS BEEN GIVEN, UNDER WHICH ANY LEVY HAS TO BE IMPO SED UPON TAX PAYER, THEN SUCH POWER COMES INTO 25 EFFECT FROM THE DATE OF SUBSTITUTION AND CANNOT BE APPLIED RETROSPECTIVELY. THE SAID EXERCISE OF POWER HAS BEEN PROVIDED BY THE STA TUTE TO BE FROM 01.06.2015 AND HENCE, IS TO BE APPLIED PROSPECTIVELY. THERE IS NO MERIT IN T HE CLAIM OF REVENUE THAT EVEN WITHOUT INSERTION OF CLAUSE (C) UNDER SECTION 200A(1) OF TH E ACT, IT WAS INCUMBENT UPON THE ASSESSEE TO PAY FEES, IN CASE THERE IS DEFAULT IN FURNISHING TH E STATEMENT OF TAX DEDUCTED AT SOURCE. 11 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 ADMITTEDLY, THE ONUS WAS UPON THE ASSESSEE TO PREPA RE STATEMENTS AND DELIVER THE SAME WITHIN PRESCRIBED TIME BEFORE THE PRESCRIBED AUTHOR ITY, BUT THE POWER TO COLLECT THE FEES BY THE PRESCRIBED AUTHORITY VESTED IN SUCH AUTHORITY O NLY BY WAY OF SUBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. PRIOR TO SAID SUBSTATION, THE ASSESSING OFFICER HAD NO AUTHORITY TO CHARGE TH E FEES UNDER SECTION 234E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT. B EFORE EXERCISING THE AUTHORITY OF CHARGING ANY SUM FROM ANY DEDUCTOR OR THE ASSESSEE, THE PRES CRIBED AUTHORITY SHOULD HAVE NECESSARY POWER VESTED IN IT AND BEFORE VESTING OF SUCH POWER , NO ORDER CAN BE PASSED BY THE PRESCRIBED AUTHORITY IN CHARGING OF SUCH FEES UNDER SECTION 23 4E OF THE ACT, WHILE EXERCISING JURISDICTION UNDER SECTION 200A OF THE ACT. THUS, IN THE ABSENCE OF ENABLING PROVISIONS, UNDER WHICH THE PRESCRIBED AUTHORITY IS EMPOWERED TO CHARGE THE FEE S, THE ASSESSING OFFICER WHILE PROCESSING THE RETURNS FILED BY THE DEDUCTOR IN RESPECT OF TAX DEDUCTED AT SOURCE CAN RAISE THE DEMAND ON ACCOUNT OF TAXES, IF ANY, NOT DEPOSITED AND CHARGE INTEREST. HOWEVER, PRIOR TO 01.06.2015, THE ASSESSING OFFICER DOES NOT HAVE THE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING TDS RETURNS. IN THE ABSENCE OF ENABLING PROVISIONS, LEVY OF FEES COULD NOT BE EFFECTED IN THE COURSE OF INTIMATION ISSUED UNDER S ECTION 200A OF THE ACT PRIOR TO 01.06.2015. 26. THE AMRITSAR BENCH OF TRIBUNAL IN SIBIA HEALTH CARE (P) LTD. VS. DCIT (2015) 121 DTR 81 (ASR) (TRIB) HAD HELD THAT THE ADJUSTMENT IN RESPEC T OF LEVY OF 26 FEES UNDER SECTION 234E OF THE ACT WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A OF THE ACT. SUCH A LEVY COULD NOT BE EFFECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A OF THE ACT AND IN THE ABSENCE OF ANY OTHER PRO VISIONS ENABLING THE DEMAND IN RESPECT OF THIS LEVY HAVING BEEN POINTED OUT, NO SUCH LEVY COU LD BE EFFECTED. THE SAID PROPOSITION HAS BEEN APPLIED IN VARIOUS DECISIONS OF DIFFERENT BENC HES OF TRIBUNAL. REFERENCE WAS MADE TO THE DECISIONS OF CHENNAI BENCH OF TRIBUNAL IN G. INDIRA NI VS. DCIT (SUPRA), AHMEDABAD BENCH OF TRIBUNAL IN M/S. GLOBE ECOLOGISTICS LTD. VS. DCIT I N ITA NOS.2689-2691/AHD/2015, ITA NO.2692/AHD/2015, RELATING TO ASSESSMENT YEAR 2014- 15, ITA NO.2693/AHD/2015, RELATING TO ASSESSMENT YEAR 2013-14 AND ITA NOS.2694- 2695/AHD/ 2014, RELATING TO ASSESSMENT YEAR 2013-14, VIDE CONSOLIDATED ORDER DATED 26.11.2015 A ND CHANDIGARH BENCH OF TRIBUNAL IN M/S. KHANNA WATCHES LTD. VS. DCIT IN ITA NOS.731 TO 735/ CHD/2015, RELATING TO ASSESSMENT YEARS 2014-15 & 2013-14, ORDER DATED 29.10.2015. 27. WHILE DECIDING THE PRESENT BUNCH OF APPEALS, TH E REVENUE HAD PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN RASHM IKANT KUNDALIA VS. UNION OF INDIA (SUPRA) WHEREIN, THE CONSTITUTIONAL VALIDITY OF SEC TION 234E OF THE ACT WAS CHALLENGED. THE HONBLE HIGH COURT NOTED THE FACT THAT WHERE THE DE DUCTOR WAS REQUIRED TO FURNISH PERIODICAL QUARTERLY STATEMENTS CONTAINING THE DETAILS OF DEDU CTION OF TAX MADE DURING THE QUARTER, BY THE PRESCRIBED DUE DATE AND THE DELAY IN FURNISHING SUCH TDS RETURNS WOULD HAVE CASCADING EFFECT. IT WAS FURTHER OBSERVED BY THE HONBLE HIGH COURT THAT UNDER THE INCOME-TAX ACT, WHERE THERE IS AN OBLIGATION ON THE INCOME-TAX DEPA RTMENT TO PROCESS THE INCOME-TAX RETURNS WITHIN SPECIFIED PERIOD FROM THE DATE OF FILING, TH E RETURNS COULD NOT BE ACCURATELY PROCESSED OF SUCH PERSON ON WHOSE BEHALF TAX HAS BEEN DEDUCTE D I.E. DEDUCTEE, UNTIL INFORMATION OF SUCH DEDUCTIONS IS 27 FURNISHED BY THE DEDUCTOR WITHIN T HE PRESCRIBED TIME. SINCE THE SUBSTANTIAL NUMBER OF DEDUCTORS WERE NOT FILING THEIR TDS RETUR NS / STATEMENTS WITHIN PRESCRIBED TIME FRAME, THEN IT LEAD TO AN ADDITIONAL WORK BURDEN UP ON THE DEPARTMENT DUE TO THE FAULT OF THE DEDUCTOR AND IN THIS LIGHT AND TO COMPENSATE FOR AD DITIONAL WORK BURDEN FORCED UPON THE DEPARTMENT, FEES WAS SOUGHT TO BE LEVIED UNDER SECT ION 234E OF THE ACT. THE HONBLE HIGH COURT HELD THAT LOOKING AT THIS FROM THIS PERSPECTI VE, SECTION 234E OF THE ACT WAS NOT PUNITIVE IN NATURE BUT A FEE WHICH WAS A FIXED CHARGE FOR TH E EXTRA SERVICE WHICH THE DEPARTMENT HAD 12 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 TO PROVIDE DUE TO THE LATE FILING OF TDS STATEMENTS . IT WAS FURTHER HELD BY THE HONBLE HIGH COURT THAT LATE FILING OF TDS RETURNS / STATEMENTS WAS REGULARIZED BY PAYMENT OF FEES AS SET OUT IN SECTION 234E OF THE ACT. THEREFORE, THE FIND INGS OF HONBLE HIGH COURT WERE THUS, THAT THE FEES SOUGHT TO BE LEVIED UNDER SECTION 234E OF THE ACT WAS NOT IN THE GUISE OF TAX SOUGHT TO BE LEVIED ON THE DEDUCTOR. THE PROVISIONS OF SEC TION 234E OF THE ACT WERE HELD TO BE NOT ONEROUS ON THE GROUND THAT SECTION DOES NOT EMPOWER THE ASSESSING OFFICER TO CONDONE THE DELAY IN LATE FILING THE INCOME TAX RETURNS OR THAT NO APPEAL IS PROVIDED FROM ARBITRARY ORDER PASSED UNDER SECTION 234E OF THE ACT. THE HONBLE H IGH COURT HELD THAT THE RIGHT TO APPEAL WAS NOT A MATTER OF RIGHT BUT WAS CREATURE OF STATU TE AND IF THE LEGISLATURE DEEMS FIT NOT TO PROVIDE REMEDY OF APPEAL, SO BE IT. THE HONBLE HIG H COURT FURTHER HELD THAT A PERSON CAN ALWAYS APPROACH THE COURT IN EXTRAORDINARY EQUITABL E JURISDICTION UNDER ARTICLE 226/227 OF THE CONSTITUTION AS THE CASE MAY BE. THE HONBLE HIGH C OURT THEREFORE, OBSERVED THAT SIMPLY BECAUSE NO REMEDY OF APPEAL WAS PROVIDED FOR THE PR OVISIONS OF SECTION 234E OF THE ACT, THE SAME CANNOT BE SAID TO BE ONEROUS AND SECTION 234E OF THE ACT WAS HELD TO BE CONSTITUTIONALLY VALID. THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SECTION 234E OF THE ACT HAS ALSO BEEN UPHELD BY THE HONBLE RAJASTHAN HIGH COURT IN M/S. DUNDLOD SHIKSHAN SANSTHAN & ANR. VS. UNION OF INDIA AND ORS (SUPRA). 28. IN VIEW OF THE ABOVE SAID RATIO LAID DOWN BY TH E HONBLE BOMBAY HIGH COURT, THE CASE OF THE LEARNED CIT-DR BEFORE US WAS THAT THERE IS NO M ERIT IN THE PRESENT SET OF APPEALS FILED BY THE ASSESSEE AS THE HONBLE HIGH COURT HAS LAID DOW N THAT NO APPEAL IS PROVIDED FROM AN ORDER PASSED UNDER SECTION 234E OF THE ACT AND THE SAME M ERITS TO BE DISMISSED AT THE OUTSET. IN THIS REGARD, HE HAS RAISED TWO ISSUES THAT (A) THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE AND ALSO (B) THERE IS NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE FEES UNDER SECTI ON 234E OF THE ACT BEFORE INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FIN ANCE ACT, 2015 W.E.F. 01.06.2015. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE OTHER HAND, DREW OUR ATTENTION TO THE MEMORANDUM TO THE FINANCE BILL, 2015 WHILE INTR ODUCING THE SAID CLAUSE (C) TO SECTION 200A(1) OF THE ACT. THE FINANCE BILL TOOK NOTE OF T HE PROVISIONS OF CHAPTER XVIIB, UNDER WHICH THE PERSON DEDUCTING TAX I.E. DEDUCTOR WAS REQUIRED TO FILE QUARTERLY TAX DEDUCTION AT SOURCE STATEMENT CONTAINING THE DETAILS OF DEDUCTION OF TA X MADE DURING THE QUARTER BY THE PRESCRIBED DUE DATES. SIMILAR RESPONSIBILITY IS ON A PERSON REQUIRED TO COLLECT TAX OF CERTAIN SPECIFIED RECEIPTS UNDER SECTION 206C OF THE ACT. I N ORDER TO PROVIDE EFFECTIVE DETERRENCE AGAINST THE DELAY IN FURNISHING TDS / TCS STATEMENT S, THE FINANCE ACT, 2012 INSERTED SECTION 234E OF THE ACT TO PROVIDE FOR LEVY OF FEES ON LATE FURNISHING OF TDS / TCS STATEMENTS. THE MEMO FURTHER TOOK NOTE OF THE FACT THAT THE FINANCE (NO.2) ACT, 2009 INSERTED SECTION 200A IN THE ACT, WHICH PROVIDED FOR FURNISHING OF TDS STATE MENTS FOR DETERMINING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR. IT FURTHER TOOK NOTE THAT HOWEVER, AS SECTION 234E OF THE ACT WAS INSERTED AFTER THE INSERTION OF SECTION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DOES NOT PROVIDE FOR DETERMINATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS. IT WAS THUS, PROPOSED TO AMEND THE PROVISIONS 29 OF SECTION 200A OF THE ACT SO AS TO E NABLE THE COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCES SING OF TDS STATEMENTS UNDER SECTION 200A OF THE ACT. THE MEMO EXPLAINING THE FINANCE BILL, 2 015 VERY CATEGORICALLY HELD THAT CURRENTLY THERE DOES NOT EXIST ANY PROVISION IN THE ACT TO EN ABLE THE PROCESSING OF TCS RETURNS AND HENCE, A PROPOSAL WAS MADE TO INSERT A PROVISION IN THIS REGARD AND ALSO THE POST PROVISION SHALL INCORPORATE THE MECHANISM FOR COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT. THE FINANCE BILL FURTHER REFERS TO THE EXISTIN G PROVISIONS OF THE ACT I.E. AFTER PROCESSING OF TDS STATEMENT, INTIMATION IS GENERATED SPECIFYING T HE AMOUNT PAYABLE OR REFUNDABLE. THIS 13 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 INTIMATION GENERATED AFTER PROCESSING OF TDS STATEM ENT IS (I) SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE ACT; (II) APPEALABLE UNDER SECTI ON 246A OF THE ACT; AND (III) DEEMED AS NOTICE OF PAYMENT UNDER SECTION 156 OF THE ACT. THE FINANCE BILL FURTHER PROVIDED THAT INTIMATION GENERATED AFTER THE PROPOSED PROCESSING OF TCS STATEMENT SHALL BE AT PAR WITH THE INTIMATION GENERATED AFTER PROCESSING OF TDS STATEM ENT AND ALSO PROVIDED THAT FAILURE TO PAY TAX SPECIFIED IN THE INTIMATION SHALL ATTRACT LEVY OF INTEREST AS PER PROVISIONS OF SECTION 220(2) OF THE ACT. FURTHER, AMENDMENTS WERE ALSO MADE IN R ESPECT OF THE SCHEME OF PAYMENT OF TDS / TCS BY THE GOVERNMENT, DEDUCTOR / COLLECTOR WHICH ARE NOT RELEVANT FOR DECIDING THE ISSUE IN THE PRESENT APPEAL AND HENCE, THE SAME ARE NOT BEIN G REFERRED TO. THE FINANCE BILL FURTHER PROVIDED THAT THE AMENDMENT WOULD TAKE EFFECT FROM 01.06.2015. 29. THE PERUSAL OF MEMO EXPLAINING THE PROVISION R ELATING TO INSERTION OF CLAUSE (C) TO SECTION 200A OF THE ACT CLARIFIES THE INTENTION OF LEGISLAT URE IN INSERTING THE SAID PROVISION. THE PROVISIONS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT, 2012, UNDER WHICH THE PROVISION WAS MADE FOR LEVY OF FEES FOR LATE FURNIS HING TDS / TCS STATEMENTS. BEFORE INSERTION OF SECTION 234E OF THE ACT, THE FINANCE (NO.2) ACT, 2009 HAD INSERTED SECTION 200A IN THE 30 ACT, UNDER THE SAID SECTION, MECHANISM WAS PROVIDED FOR PROCESSING OF TDS STATEMENTS FOR DETERMINING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR, UNDER WHICH THE PROVISION WAS ALSO MADE FOR CHARGING OF INTEREST. HOWEVER, SI NCE THE PROVISIONS OF SECTION 234E OF THE ACT WERE NOT ON STATUTE WHEN THE FINANCE (NO.2) ACT , 2009 WAS PASSED, NO PROVISION WAS MADE FOR DETERMINING THE FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING THE TDS STATEMENTS. SO, WHEN SECTION 234 E OF THE ACT WAS INTRODUCED, IT PROVIDED THAT THE PERSON WAS RESPONSIBLE FOR FURNISHING THE TDS RETURNS / STATEMENTS WITHIN STIPULATED PERIOD AND IN DEFAULT, FEES WOULD BE CHARGED ON SUC H PERSON. THE SAID SECTION ITSELF PROVIDED THAT FEES SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCT ED AT SOURCE OR COLLECTED AT SOURCE. IT WAS FURTHER PROVIDED THAT THE PERSON RESPONSIBLE FOR FU RNISHING THE STATEMENTS SHALL PAY THE SAID AMOUNT WHILE FURNISHING THE STATEMENTS UNDER SECTIO N 200(3) OF THE ACT. HOWEVER, POWER ENABLING THE ASSESSING OFFICER TO CHARGE / LEVY THE FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RETURNS / STATEMENTS FILED BY A PERSON DID NOT EXIST WHEN SECTION 234E OF THE ACT WAS INSERTED BY THE FINANCE ACT, 2012. THE POWER TO CHARGE FEES UNDER THE PROVISIONS OF SECTION 234E OF THE ACT WHILE PROCESSING THE TDS STATEMENTS, WAS DWELLED UPON BY THE LEGISLATURE BY WAY OF INSERTION OF CLAUSE (C) TO SE CTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. ACCORDINGLY, WE HOLD THAT W HERE THE ASSESSING OFFICER HAS PROCESSED THE TDS STATEMENTS FILED BY THE DEDUCTOR, WHICH ADM ITTEDLY, WERE FILED BELATEDLY BUT BEFORE INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE A CT W.E.F. 01.06.2015, THEN IN SUCH CASES, THE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE FEES U NDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RETURNS FILED BY THE DEDUCTOR. 30. THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUN DALIA VS. UNION OF INDIA (SUPRA) HAS UPHELD THE CONSTITUTIONAL VALIDITY OF SAID SECTION INTRODUCED BY 31 THE FINANCE ACT, 2015 W.E.F. 01.06.2015 BUT WAS NOT ABREAST OF THE APPLICABILITY OF THE SAID SECTION 234E OF THE ACT BY THE ASSESSING OFFICER WHILE PROCESSING TDS STATEMENT FI LED BY THE DEDUCTOR PRIOR TO 01.06.2015. IN SUCH SCENARIO, WE FIND NO MERIT IN THE PLEA OF LEAR NED CIT-DR THAT THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (SU PRA) HAS LAID DOWN THE PROPOSITION THAT FEES UNDER SECTION 234E OF THE ACT IS CHARGEABLE IN THE CASE OF PRESENT SET OF APPEALS, WHERE THE ASSESSING OFFICER HAD ISSUED THE INTIMATION UND ER SECTION 200A OF THE ACT PRIOR TO 01.06.2015. 14 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 31. ANOTHER ASPECT OF THE ISSUE IS WHETHER THE AMEN DMENT BROUGHT IN BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015 BY WAY OF INSERTION OF CLAUS E (C) TO SECTION 200A(1) OF THE ACT IS CLARIFICATORY OR IS PROSPECTIVE IN NATURE AND IS NO T APPLICABLE TO THE PENDING ASSESSMENTS. UNDOUBTEDLY, THE PROVISIONS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT, 2012, UNDER WHICH THE LIABILITY WAS IMPOSED UPON THE DEDU CTOR IN SUCH CASES WHERE TDS STATEMENTS / RETURNS WERE FILED BELATEDLY TO PAY THE FEES AS P ER SAID SECTION. HOWEVER, IN CASES, WHERE THE ASSESSEE HAS FAILED TO DEPOSIT THE SAID FEES, THEN IN ORDER TO ENABLE THE ASSESSING OFFICER TO COLLECT THE SAID FEES CHARGEABLE UNDER SECTION 234E OF THE ACT, IT IS INCUMBENT UPON THE LEGISLATURE TO PROVIDE MECHANISM FOR THE ASSESSING OFFICER TO CHARGE AND COLLECT SUCH FEES. IN THE ABSENCE OF ENABLING PROVISIONS, THE ASSESSING O FFICER WHILE PROCESSING THE TDS STATEMENTS, EVEN IF THE SAID STATEMENTS ARE BELATED , IS NOT EMPOWERED TO CHARGE THE FEES UNDER SECTION 234E OF THE ACT. THE AMENDMENT WAS BR OUGHT IN BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015 AND SUCH AN AMENDMENT WHERE EMPOWERMENT IS GIVEN TO THE ASSESSING OFFICER TO LEVY OR CHARGE THE FEES CANNOT BE SAID TO BE CLARIF ICATORY IN NATURE AND HENCE, APPLICABLE FOR PENDING ASSESSMENTS. 32. THE HONBLE SUPREME COURT IN CIT VS. VATIKA TOW NSHIP PVT. LTD. (SUPRA) HAS EXPLAINED THE GENERAL PRINCIPLE CONCERNING RETROSPECTIVITY AND HA VE HELD THAT OF THE VARIOUS RULES GUIDING HOW A LEGISLATION HAS TO BE INTERPRETED, ONE ESTABL ISHED RULE IS THAT UNLESS CONTRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO BE INTEND ED TO HAVE A RETROSPECTIVE OPERATION. IDEA BEHIND THE RULE IS THAT CURRENT LAW SHOULD GOVERN C URRENT ACTIVITIES. THE MEMO EXPLAINING THE FINANCE BILL, 2015 VERY CLEARLY ALSO RECOGNIZES THA T AND REFERS TO THE CURRENT PROVISIONS OF SUB- SECTION (3) TO SECTION 200 OF THE ACT, UNDER WHICH THE DEDUCTOR IS TO FURNISH TDS STATEMENTS. HOWEVER, AS SECTION 234E OF THE ACT WAS INSERTED AF TER INSERTION OF SECTION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DID NOT PROVIDE FOR DETERMINATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME O F PROCESSING OF TDS STATEMENTS. IN THIS REGARD, IT WAS THUS, PROPOSED TO AMEND THE PROVISIO NS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMPUTATION OF FEES PAYABLE UNDER SECTIO N 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS UNDER SECTION 200A OF THE ACT. IN OTHER WORDS, THE ASSESSING OFFICER IS EMPOWERED TO CHARGE FEES PAYABLE UNDER S ECTION 234E OF THE ACT IN THE INTIMATION ISSUED AFTER INSERTION OF CLAUSE (C) TO SECTION 200 A(1) OF THE ACT W.E.F. 01.06.2015. THE LEGISLATURE ITSELF RECOGNIZED THAT UNDER THE EXISTI NG PROVISIONS OF SECTION 200A OF THE ACT I.E. PRIOR TO 01.06.2015, THE ASSESSING OFFICER AT THE T IME OF PROCESSING THE TDS STATEMENTS DID NOT HAVE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT AND IN ORDER TO COVER UP THAT, THE AMENDMENT WAS MADE BY WAY OF INSERTION OF CLAUSE (C ) TO SECTION 200A OF THE ACT. IN SUCH SCENARIO, IT CANNOT BE SAID THAT INSERTION MADE BY SECTION 200A(1)(C) OF THE ACT IS RETROSPECTIVE IN NATURE, WHERE THE LEGISLATURE WAS AWARE THAT THE FEES COULD BE CHARGED UNDER SECTION 234E OF THE ACT AS PER FINANCE ACT, 2 012 AND ALSO THE PROVISIONS OF SECTION 200A OF THE ACT WERE INSERTED BY FINANCE (NO.2) ACT, 200 9, UNDER WHICH THE MACHINERY WAS PROVIDED 33 FOR THE ASSESSING OFFICER TO PROCESS TH E TDS STATEMENTS FILED BY THE ASSESSEE. THE INSERTION CATEGORICALLY BEING MADE W.E.F. 01.06.201 5 LAYS DOWN THAT THE SAID AMENDMENT IS PROSPECTIVE IN NATURE AND CANNOT BE APPLIED TO PROC ESSING OF TDS RETURNS / STATEMENTS PRIOR TO 01.06.2015. 33. WE FURTHER FIND THAT IN RECENT JUDGMENT DATED 26.08.2016, THE HONBLE KARNATAKA HIGH COURT IN WRIT APPEAL NOS.2663-2674/2015(T-IT) & ORS IN SRI FATHERAJ SINGHVI & ORS VS. UNION OF INDIA & ORS HAS QUASHED THE INTIMATION ISSUED UN DER SECTION 200A OF THE ACT LEVYING THE FEES FOR DELAYED FILING THE TDS STATEMENTS UNDER SE CTION 234E OF THE ACT. THE HONBLE HIGH COURT NOTES THAT THE FINANCE ACT, 2015 HAD MADE AME NDMENTS TO SECTION 200A OF THE ACT 15 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 ENABLING THE ASSESSING OFFICER TO MAKE ADJUSTMENTS WHILE LEVYING FEES UNDER SECTION 234E OF THE ACT WAS APPLICABLE W.E.F. 01.06.2015 AND HAS HE LD THAT IT HAS PROSPECTIVE EFFECT. ACCORDINGLY, THE HO NBLE HIGH COURT HELD THAT INT IMATION RAISING DEMAND PRIOR TO 01.06.2015 UNDER SECTION 200A OF THE ACT LEVYING SECTION 234E OF THE ACT LATE FEES IS NOT VALID. HOWEVER, THE HONBLE HIGH COURT KEPT OPEN THE ISSUE ON CONST ITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. WE HAVE ALREADY REFERRED TO THE DECISION OF HO NBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) IN THIS REGARD, WHEREIN THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT HAS BEEN UPHELD. 34. ACCORDINGLY, WE HOLD THAT THE AMENDMENT TO SECT ION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE AND IN VIEW THEREOF, THE ASSESSING OFFICER W HILE PROCESSING THE TDS STATEMENTS / RETURNS IN THE PRESENT SET OF APPEALS FOR THE PERIO D PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE , THE INTIMATION ISSUED BY THE ASSESSING OFFICER 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 23 4E OF THE ACT IS NOT VALID AND THE SAME IS 34 DELETED. THE INTIMATION ISSUED BY THE ASSESSING OFFICER WAS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT A ND SUCH ADJUSTMENT COULD NOT STAND IN THE EYE OF LAW. 35. BEFORE PARTING WE MAY REFER TO RELIANCE PLACED UPON BY THE LEARNED CITDR ON THE RATIO LAID DOWN BY CHENNAI BENCH OF TRIBUNAL IN G. INDIRANI VS . DCIT (SUPRA) ON ANOTHER ASPECT WHEREIN IT WAS HELD THAT BEFORE 01.06.2015, WHETHER THE ASS ESSING OFFICER HAD AUTHORITY TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYIN G FEES FOR DELAY IN FILING THE TDS STATEMENTS UNDER SECTION 200(3) OF THE ACT; THE TRI BUNAL HELD YES THAT THE ASSESSING AUTHORITY HAD SUCH POWER AND AFTER 01.06.2015, THE ASSESSING OFFICER WAS WITHIN HIS LIMIT TO LEVY FEES UNDER SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT. IN VIEW OF THE PRESENT SET OF FACTS, WHERE THE ASSESSING OFFICER HAD CHARGED FEES UNDER SECTION 234E OF THE ACT WHILE PR OCESSING THE STATEMENTS UNDER SECTION 200A OF THE ACT BEFORE 01.06.2015, THERE IS NO MERI T IN THE RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE SAID PROPOSITION LAID DOWN BY THE CHENNAI BENCH OF TRIBUNAL AND WE DISMISS THE SAME. 36. ANOTHER RELIANCE PLACED UPON BY THE LEARNED CIT -DR WAS IN RESPECT OF AMENDMENT BEING RETROSPECTIVE OR PROSPECTIVE AND RELIANCE WAS PLACE D ON THE RATIO LAID DOWN BY HONBLE DELHI HIGH COURT IN CIT VS. NARESH KUMAR (SUPRA). HOWEVER , IN VIEW OF OUR DECISION IN THE PARAS HEREINABOVE, WHERE POWER IS BEING ENSHRINED UPON TH E ASSESSING OFFICER TO LEVY OR CHARGE WHILE PROCESSING THE TDS RETURNS W.E.F. 01.06.2015, SUCH PROVISION CANNOT HAVE RETROSPECTIVE EFFECT AS IT WOULD BE DETRIMENTAL TO THE CASE OF TA X PAYER. THE HONBLE DELHI HIGH COURT WAS CONSIDERING THE APPLICATION OF AMENDMENT TO SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010, UNDER WHICH CERTAIN RELAXATIONS WERE GIVEN TO 35 THE APPLICATION OF SAID SECTION AND IT WAS HELD THAT THE SAME APPLIES RETROSPECTIVELY TO E ARLIER YEARS. HOWEVER, IN THE PRESENT SET OF APPEALS, THE ISSUE IS AGAINST THE PROVISION UNDER W HICH A NEW ENABLING POWER IS BEING GIVEN TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PRO CESSING TDS RETURNS / STATEMENTS AND SUCH POWER IS TO BE APPLIED PROSPECTIVELY. IN ANY CASE, THE PARLIAMENT ITSELF HAS RECOGNIZED ITS OPERATION TO BE PROSPECTIVE IN NATURE WHILE INTRODU CING CLAUSE (C) TO SECTION 200A(1) OF THE ACT AND HENCE, CANNOT BE APPLIED RETROSPECTIVELY. S IMILARLY, RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE RATIO LAID DOWN BY THE HONBL E SUPREME COURT IN GOVINDDAS VS. ITO (SUPRA) IS MISPLACED BECAUSE OF THE DISTINGUISHABLE FACTS AND ISSUES. 16 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 37. NOW, COMING TO THE CONNECTED ISSUE RAISED BY T HE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BY WAY OF GROUND OF APPEAL NO.1 THAT W HETHER ANY APPEAL IS MAINTAINABLE AGAINST THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT AND / OR ORDER PASSED UNDER SECTION 154 R.W.S. 200A OF THE ACT BY ASSESSING OFF ICER IN CHARGING THE FEES UNDER SECTION 234E OF THE ACT. BOTH THE LEARNED AUTHORIZED REPRESENTAT IVES HAVE RAISED VARIED ARGUMENTS IN RESPECT OF SAID ISSUE AND THE LEARNED CIT-DR HAS RE FERRED TO THE ORDER OF CIT(A), WHO HAD HELD THAT NO APPEAL IS MAINTAINABLE AGAINST THE ORDER OF ASSESSING OFFICER PASSED WHILE PROCESSING THE TDS RETURNS / STATEMENTS AND CHARGING OF FEES U NDER SECTION 234E OF THE ACT. WITHOUT GOING INTO VARIOUS ASPECTS OF THE ISSUE, WE MAKE RE FERENCE TO THE MEMORANDUM EXPLAINING THE FINANCE BILL, 2015, UNDER WHICH THE HEADING WAS RATIONALIZATION OF PROVISIONS RELATING TO TAX DEDUCTION AT SOURCE (TDS) AND TAX COLLECTION AT SOURCE (TCS). THE SAID MEMORANDUM CATEGORICALLY RECOGNIZED THAT UNDER THE EXISTING PR OVISIONS OF THE ACT, AFTER PROCESSING OF TDS STATEMENTS, AN INTIMATION IS GENERATED SPECIFYING T HE AMOUNT PAYABLE OR REFUNDABLE. IT WAS FURTHER NOTED THAT THIS INTIMATION GENERATED AFTER 36 PROCESSING TDS STATEMENT IS (I) SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE ACT; (II) APPEALABLE UNDER SECTION 246A OF THE ACT; AND (III) DEEMED AS NOTICE OF PAYMENT UNDER SECTION 156 OF THE ACT. UNDER THE AMENDMENT, SIMILAR POSITION WAS GIVEN TO THE PROCESSING OF TCS STATEME NTS. IN OTHER WORDS, THE LEGISLATURE RECOGNIZES THAT A DEDUCTOR WHO HAS FILED HIS STATEM ENT OF TAX DEDUCTED AT SOURCE, WHICH IN TURN, HAS BEEN PROCESSED BY THE ASSESSING OFFICER A ND INTIMATION IS GENERATED UNDER WHICH, IF ANY AMOUNT IS FOUND TO BE PAYABLE, THEN SUCH INTIMA TION GENERATED AFTER PROCESSING OF TDS RETURNS IS SUBJECT TO RECTIFICATION UNDER SECTION 1 54 OF THE ACT AND / OR IS ALSO APPEALABLE UNDER SECTION 246A OF THE ACT, SINCE THE DEMAND ISS UED BY THE ASSESSING OFFICER IS DEEMED TO BE A NOTICE OF PAYMENT UNDER SECTION 156 OF THE ACT . SINCE THE INTIMATION IN QUESTION ISSUED BY THE ASSESSING OFFICER WAS APPEALABLE ORDER UNDER SECTION 246A(1)(A) OF THE ACT, THEREFORE, THE CIT(A) SHOULD HAVE EXAMINED THE LEGALITY OF ADJ USTMENT MADE UNDER INTIMATION ISSUED UNDER SECTION 200A OF THE ACT. THE CIT(A) HAS REJEC TED THE PRESENT SET OF APPEALS ON THE SURMISE THAT FIRST OF ALL, NO APPEAL IS PROVIDED AG AINST THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT. FURTHER, THE CIT(A) HAS ALSO DECID ED THE ISSUE ON MERITS AND THE ASSESSEE IS IN APPEAL BEFORE US ON BOTH THESE GROUNDS. VIS--VIS T HE FIRST ISSUE OF MAINTAINABILITY OF APPEAL AGAINST THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT, WE HOLD THAT SUCH INTIMATION ISSUED BY THE ASSESSING OFFICER AFTER PROCESSING TH E TDS RETURNS IS APPEALABLE. THE DEMAND RAISED BY WAY OF CHARGING OF FEES UNDER SECTION 234 E OF THE ACT IS UNDER SECTION 156 OF THE ACT AND ANY DEMAND RAISED UNDER SECTION 156 OF THE ACT IS APPEALABLE UNDER SECTION 246A(1)(A) AND (C) OF THE ACT. ACCORDINGLY, WE REVERSE THE FIN DINGS OF CIT(A) IN THIS REGARD. WE FIND SUPPORT FROM THE SIMILAR PROPOSITION BEING LAID DOW N BY MUMBAI BENCH OF TRIBUNAL IN BUNCH OF CASES WITH LEAD ORDER IN M/S. KASH REALTORS PVT. LTD. VS. ITO IN ITA NO.4199/M/2015, RELATING TO ASSESSMENT YEAR 2013-14, CONSOLIDATED O RDER DATED 27.07.2016, WHICH HAD ALSO DECIDED THE 37 ISSUE OF CHARGING OF FEES UNDER SECT ION 234E OF THE ACT IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISIONS OF OTHER BENCHES O F TRIBUNAL. ONCE INTIMATION ISSUED UNDER SECTION 200A(1) OF THE ACT IS APPEALABLE ORDER BEFO RE THE CIT(A) UNDER SECTION 246A(1)(A) OF THE ACT, THEN SUCH APPEALABLE ORDER PASSED BY THE C IT(A) UNDER SECTION 250 OF THE ACT IS FURTHER APPEALABLE BEFORE THE TRIBUNAL UNDER SECTIO N 253 OF THE ACT. HENCE, WE ADMIT THE PRESENT APPEALS FILED BY THE ASSESSEE EVEN ON THIS PRELIMINARY ISSUE. WE HAVE ALREADY ADJUDICATED THE ISSUE OF CHARGING FEES UNDER SECTIO N 234E OF THE ACT BY THE ASSESSING OFFICER WHILE PROCESSING RETURNS / STATEMENTS IN THE PARAS HEREINABOVE AND IN VIEW THEREOF, WE HOLD THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO CHAR GE THE FEES UNDER SECTION 234E OF THE ACT BY WAY OF INTIMATION ISSUED UNDER SECTION 200A OF T HE ACT IN RESPECT OF DEFAULTS BEFORE 01.06.2015, WE ALLOW THE CLAIM OF ASSESSEE ON BOTH THE ASPECTS. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED. 17 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 38. IN THE RESULT, EXCEPT FOR THE APPEALS IN ITA N OS.560/PN/2016 & 561/PN/2016, 193/PN/2016, 189/PN/2016, 191/PN/2016, 199/PN/2016, 194/PN/2016 AND 196/PN/2016, WHICH ARE DISMISSED AS WITHDRAWN, ALL THE OTHER APP EALS FILED BY DIFFERENT ASSESSEE FOR DIFFERENT QUARTERS RELATING TO DIFFERENT YEARS ARE ALLOWED. 6. IN THE LIGHT OF THE AFORESAID DECISION AND RESPE CTFULLY FOLLOWING THE SAME, WE NOTE THAT IT APPEARS THAT IN ALL MATTERS, THE INTIM ATION GIVEN BY THE AO WHICH ARE GIVEN IN PURPORTED EXERCISE OF POWER U/S. 200A ARE IN RESPECT OF LATE FEES U/S. 234E OF THE ACT FOR THE PERIOD PRIOR TO 01.06.2015. AS SUC H, IT IS ON ACCOUNT OF THE INTIMATION GIVEN MAKING DEMAND OF THE LATE FEE IN PURPORTED EX ERCISE OF POWERS U/S. 200A OF THE ACT. WE NOTE THAT CLAUSE (C) OF SEC. 200A OF T HE ACT EMPOWERS THE AO TO LEVY LATE FEE WAS W.E.F. 01.06.2015 AND THERE IS NO INDI CATION [WHICH IS EITHER EXPRESS OR IMPLIED] WHILE AMENDMENT WAS MADE THAT IT IS RETROS PECTIVE OR CLARIFACTORY IN NATURE. SINCE THE AO IS EMPOWERED TO LEVY THE LATE FEE FOR LATE FILING OF THE STATEMENT OF TDS/TCS STATEMENT AND IN THE MEMORANDOM EXPLAINING THE INTRODUCTION OF FINANCE BILL, 2015 CLEARLY TOOK NOTE OF THE PROVISIONS OF C HAPTER XVIIB UNDER WHICH THE PERSONS DEDUCTING TAX I.E. DEDUCTOR WAS REQUIRED TO FILE QUARTERLY TAX DEDUCTION AT SOURCE, STATEMENTS CONTAINING THE DETAILS OF DEDUCT ION OF TAX MADE DURING QUARTERLY BY THE PRESCRIBED DUE DATES. (SIMILAR RESPONSIBILIT Y IS ON THE PERSONS REQUIRED TO COLLECT TAX OF CERTAIN SPECIFIED RECEIPT U/S. 206C OF THE ACT). IN ORDER TO PROVIDE EFFECTIVE DETERRENCE AGAINST THE DELAY IN FURNISHIN G TDS/TCS STATEMENTS, THE FINANCE ACT, 2012 INSERTED SEC. 234E OF THE ACT TO PROVIDE FOR LEVY OF FEES ON LATE FURNISHING OF TDS STATEMENTS. THE MEMORANDUM OF FINANCE BILL, 20 15, FURTHER TOOK NOTE OF THE FACT THAT THE FINANCE (NO. 2) ACT 2009, INSERTED SE C. 200A IN THE ACT, WHICH PRESCRIBED FOR FURNISHING OF TDS STATEMENTS FOR DETERMINING TH E AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR. IT FURTHER TOOK NOTE THAT HOWEVER , AS SEC. 234E OF THE ACT WAS INSERTED AFTER THE INSERTION OF SEC. 200A IN THE AC T, THE EXISTING PROVISIONS OF SEC. 200A OF THE ACT DO NOT PROVIDE FOR DETERMINATION OF LATE FEES PAYABLE U/S. 234E OF 18 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENT. IT WAS THUS, PROPOSED TO AMEND THE PROVISIONS OF SEC. 200A OF THE ACT SO AS TO ENA BLE THE COMPUTATION OF TAXES PAYABLE U/S. 234E OF THE ACT AT THE TIME OF PROCESS ING OF TDS STATEMENT U/S. 200A OF THE ACT. TAKING NOTE OF THE AFORESAID LEGAL HISTOR Y THE MEMORANDUM EXPLAINING FINANCE BILL, 2015 TOOK NOTE OF THE FACT THAT AT TH AT TIME THERE DOES NOT EXIST ANY PROVISION IN THE ACT TO ENABLE THE PROCESSING AS TC S RETURNS AND HENCE, A PROPOSAL WAS MADE TO INSERT A PROVISION IN THIS REGARD AND A LSO THE POST PROVISION WAS INCORPORATED THE MECHANISM FOR COMPUTATION OF LATE FEES PAYABLE U/S. 234E OF THE ACT. THUS, WE NOTE THAT A PERUSAL OF THE MEMORANDUM EXPLAINING THE INSERTION OF PROVISION RELATING TO INSERTION OF CLAUSE (C) TO S EC. 200A OF THE ACT CLARIFIES THE INTENTION OF THE LEGISLATURE IN INSERTING THE SAID PROVISION. THE FINANCE BILL FURTHER CLEARLY PROVIDES THAT THE AMENDMENT TOOK EFFECT FRO M 01.06.2015, SO THERE IS NO INDICATION WHATSOEVER THAT CLAUSE (C) OF SECTION 20 0A IS RETROSPECTIVE OR CLARIFICATORY IN NATURE. THEREFORE, THE AO IS NOT EMPOWERED TO L EVY LATE FEES U/S. 234E OF THE ACT BEFORE 01.06.2015. THEREFORE, IN THE LIGHT OF THE AFORESAID DISCUSSION AND THE RATIO LAID BY THE PUNE BENCH IN MAHARASTRA CRICKET ASSOCI ATION & ORS. (SUPRA), WE HOLD THAT THE AMENDMENT [CLAUSE (C)] WAS INSERTED U/S. 200A O F THE ACT WHICH HAS BEEN GIVEN EFFECT FROM 01.06.2015 IS PROSPECTIVE IN NATURE, AN D NO COMPUTATION OF LATE FEE FOR THE DEMAND OR THE INTIMATION FOR THE LATE FEE U/S. 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RESPECTIVE ASSESSMENT YEARS PRIOR TO 01.06.2015. THEREFORE, THE INTIMATION U/S. 200A OF THE ACT BY THE AO, TDS FOR PAYMENT OF LATE FEE U/S. 234E OF THE ACT FOR THE RESPECTIVE ASSESSMENT YEARS PRIOR T O 01.06.2015 IS WITHOUT ANY AUTHORITY OF LAW. IN THE LIGHT OF THE AFORESAID VI EW, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO AO THAT THE LATE FEE LEVIED FOR THE PERIOD OF DELAY OF FILING R ETURN PRIOR TO 01.06.2015 NEED TO BE DELETED. WE FURTHER CLARIFY THAT THE AO IS WELL WIT HIN HIS JURISDICTION TO LEVY LATE FEE U/S. 234E OF THE ACT FOR THE PERIOD STARTING ONLY F ROM 01.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN. IN SUM AND SUBSTANCE, TH E LEVY OF LATE FEE U/S. 234E OF THE 19 ITA NOS.492-500/JODH/2018 & ITA NOS. 414-417/JODH/2018 & ITA NO. 353/JODH/2018 & ITA NOS. 207-208/JODH/2018 ACT IS VALID FROM THE PERIOD FROM 01.06.2015 TO THE DATE OF ACTUAL FILING OF THE TDS RETURN AND THE BALANCE FEES LEVIED EARLIER TO 01.06 .2015 IS DIRECTED TO BE DELETED. 7. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE A LLOWED IN TERMS OF ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH MAY, 2019 SD/- SD/- (N.K. SAINI) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 10.05.2019 J.D. SR. PS. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. % , '% , * / DR, ITAT, JODHPUR 6. - / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR