LAWMEN CONCEPTS PVT. LTD., MUMBAI V. DCIT-CPC-TDS , MUMBAI

ITA 5140/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9134 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 06-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MICHAEL JERALDSR
• Assessee Lawyers: SUDHIR H HUNNARGIKAR
• Keywords: Capital asset; Charitable institution; Period of limitation; Retrospective amendment; Question of law; Difference of opinion; TDS; Set aside
• Section: 234E; 200A; 201; 2(A); 73; 13; 32; 154; 139

Judgement Text

1 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI VIKAS AWASTHY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.5140-5143/MUM/2018 ( / ASSESSMENT YEAR: 2014-15) LAWMEN C O NCEPTS PV T . LTD. FLAT NO.2805, 28 TH FLOOR RELISH CITY OF JOY J.S.D. ROAD, MULUND, MUMBAI-400 080. / VS. DY. CIT - CPC - TDS AAYKAR BHAVAN SECTOR-3 VAISHALI, GHASIABAD-U.P.-201 010. ./ ./PAN/TAN AABCL-9662-R /MUML-08137-D ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI SUDHIR H. HUNNARGIKAR / RESPONDENT BY : SHRI MICHAEL JERALD-SR.DR /DATE OF HEARING : 10/01/2020 / DATE OF PRONOUNCEMENT : 10/01/2020 / O R D E R PER BENCH: - 1. AFORESAID APPEALS BY ASSESSEE FOR QUARTER-1 TO Q UARTER-4 OF ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2014 -15 CONTEST COMMON ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-5 9, MUMBAI, [IN SHORT 2 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 REFERRED TO AS CIT(A)], APPEAL NOS. CIT(A) MUMBAI -59/IT-218-221/TDS- 1/14-15 DATED 14/05/2015. 2.1 THE REGISTRY HAD NOTED A DELAY OF AS MANY AS 63 4 DAYS IN FILING OF THE APPEALS, THE CONDONATION OF WHICH WAS SOUGHT BY THE ASSESSEE DURING THE COURSE OF HEARING ON 18/12/2019. UPON HEARING RIVAL CONTENTIONS AND AFTER CONSIDERING THE FACTUAL MATRIX, THE BENCH FORMED AN OPINION THAT DELAY WAS TO BE CONDONED, HOWEVER, UPON PAYMENT OF COST OF RS .5,000/- PER APPEAL. THE ORDER, IN THIS REGARD, WAS PASSED BY THE BENCH ON THE SAME DAY AND THE ASSESSEE WAS DIRECTED TO PAY THE COST IN THE SP ECIFIED MANNER. 2.2 ACCORDINGLY, AS DIRECTED IN THE ORDER, THE APPE ALS WERE POSTED FOR FINAL HEARING TODAY. THE LD. AUTHORIZED REPRESENTATIVE FO R ASSESSEE (AR), SUBMITTED THAT THE AFORESAID COST, AS DIRECTED, HAS ALREADY BEEN DEPOSITED BY THE ASSESSEE. THE RELEVANT CHALLANS HAVE ALREADY BEEN PLACED ON THE RECORD. FINDING THE SAME IN ORDER, THE MATTER WAS P ROCEEDED WITH AS PER THE ARGUMENTS ADVANCED BY BOTH THE REPRESENTATIVES. 3. THE LD. AR PLACED ON RECORD FAVORABLE JUDICIAL P RONOUNCEMENTS TO SUBMIT THAT THE LATE FILING FEES U/S 234E AS LEVIED BY REVENUE, BEFORE 01/06/2015, WOULD BE ILLEGAL AND NOT SUSTAINABLE UN DER LAW. PER CONTRA, LD. DR RELIED UPON FAVORABLE DECISION OF HONBLE GUJARA T HIGH COURT RENDERED IN RAJESH KOURANI V/S UNION OF INDIA (297 CTR 502 20/0 6/2017). WE HAVE CAREFULLY CONSIDERED THE MATERIAL ON RECORD AN D APPLIED OUR MIND TO THE ISSUE IN HAND. OUR ADJUDICATION WOULD BE AS GIV EN IN SUCCEEDING PARAGRAPHS. 3 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 4. THE GROUNDS RAISED IN ALL THE FOUR APPEALS, ARE PARI-MATERIA THE SAME, EXCEPT FOR FACTUAL DETAILS AND FIGURES. THEREFORE, IT IS ADMITTED POSITION THAT ADJUDICATION IN ANY APPEAL WOULD MUTATIS-MUTANDIS WOULD APPLY TO ALL THE OTHER APPEALS. TAKING ITA NO. 5140/MUM/2018 AS THE LEAD APPEAL, THE GROUNDS RAISED THEREIN COULD BE REPRODUCED IN THE F OLLOWING MANNER: - LATE FILING FEES OF RS. 12280/- (26Q-4/FY: 2013-14) U/S.: 234E OF I. T. ACT, 1961 INTIMATION U/SEC. 200A OF I.T. ACT, 1961 DEVOID THE APPLICATION OF MIND: (1) THAT CONSIDERING THE LAW AND FACTS OF THE CASE THE MAIN GROUND OF APPEAL RAISED ON MERIT BY THE APPELLANT IS THAT THE ORDER PASSED U/S 200A R.W.S. 234E OF THE I. TAX ACT, 1961 BY THE LEARNED DEPUTY COMMISSIONER OF INCOME T AX, CENTRALIZED PROCESSING CELL- TDS, GHAZIABAD-201 010, U.P. DATED 22 ND JULY, 2014 LEVYING THE LATE FILING FEES OF RS. 12280/-{26Q-4/FY: 2O13-14) IS ERRONEOUS & IMPROPER ON THE FOLLOWING GROUNDS:- (A) LEVY OF LATE FILLING FEES U/S 234E OF THE ACT U LTRA VIRES THE PROVISIONS OF SECTION 200A OF THE I.T. ACT, 1961. THE AFORESAID ORDERS PASSED FOR 26Q-4 IN THE SCHEME FOR CENTRALIZED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE FRAMED BY THE BOARD FOR THE PURPOSE OF PROCESSING OF STATEMENTS UNDER SUB-SECTION (1L) OF THE SEC. 20 0A OF THE I. T. ACT, 1961 LEVYING THE LATE FILING FEES OF RS. 12280/- (26Q-4/FY: 2013-14) UNDER SECTION 234E OF INCOME TAX ACT, 1961 ARE ULTRA VIRES OF THE PROVISIONS OF SECT ION 200A OF THE INCOME TAX ACT, 1961. (B) EFFECT OF STATUTORY AMENDMENT AS PER FINANCE ACT. 2015 FOR THAT FURTHER THE INTIMATION PASSED U/S 200A OF THE I. TAX ACT, 1961 DATED 22 ND JULY. 2014 BY THE LEARNED DCIT, CPC- T.D.S., GHAZIABAD-20 1 010, U.P. LEVYING THE LATE FILING FEES OF RS. 12280/- (26Q-4/FY; 2013-14) U/S. 234E O F THE ACT IS ALSO TOTALLY BAD IN LAW AS THE ISSUE OF EMPOWERING POWERS/AUTHORITY TO LEVY OF THE LATE FILING FEES UNDER SECTION 234E OF THE ACT UNDER THE PROVISIONS OF SECTION 200 A OF THE I. T. ACT, 1961 HAS BEEN FINALLY SETTLED AFTER MAKING THE AMENDMENTS BY WAY OF INSERTING THE SUBSTITUTED CLAUSES (C) TO (F) TO SECTION 200A BY THE AMENDED FINANCE A CT, 2015 W. E. F. 1 ST JUNE, 2015 AND NOT WITH ANY RETROSPECTIVE EFFECT/DATE. THEREFORE, THE INTIMATIONS PASSED U/S 200A OF THE INCOME TAX ACT, 1961 PRIOR TO THE DATE OF AMENDMENT (1 ST JUNE, 2015) ARE WITHOUT ANY PROPER & VALID LEGAL AUTHORITY AND ARE THEREFORE TO TALLY IMPROPER, UNJUSTIFIED & ERRONEOUS. IT IS QUITE EVIDENT FROM GROUNDS OF APPEAL THAT THE ASSESSEE IS AGGRIEVED BY IMPOSITION OF FEES U/S 234E FOR LATE FILING OF TDS RETURNS WHICH IS TO BE COMPUTED @RS.200/- FOR EACH DAY OF DEFAULT. 5.1 FACTS ON RECORD WOULD REVEAL THAT THE ASSESSEE FILED ITS E-TDS RETURNS FOR 4 QUARTERS OF FINANCIAL YEAR 2013-14. THE SAID RETURNS WERE TO BE FILED 4 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 ELECTRONICALLY IN THE PRESCRIBED MANNER AS PROVIDED IN SEC. 200(3) OF THE INCOME TAX ACT, 1961, READ WITH RULE 31A OF THE INC OME TAX RULES. ACCORDINGLY, THE RETURNS FOR ALL THE QUARTERS WAS F ILED IN PRESCRIBED FORM NO. 26Q. 5.2 THE PROVISIONS OF SEC.200A PROVIDES FOR PROCESS ING OF THESE TDS STATEMENTS AND PRESCRIBES THE ADJUSTMENT TO BE MADE WHILE PROCESSING THE RETURNS. ACCORDINGLY, THE DESIGNATED AUTHORITY, WHI LE PROCESSING RETURNS U/S 200A, LEVIED LATE FILING FEES AS PRESCRIBED BY SEC. 234E FOR EACH DAY OF DEFAULT. CONSEQUENTLY, THE ASSESSEE WAS SADDLED WIT H LATE FILING FEES OF RS.72,000/- FOR Q-1, RS.54,800/- FOR Q-2, RS.36,400 /- FOR Q-3 AND RS.12,280/- FOR Q-4. THE AGGREGATE FEES FOR ALL THE 4 QUARTERS AMOUNTED TO RS.1,75,480/- AND THE SAME FORM SUBJECT MATTER OF A PPEALS BEFORE US. 5.3 THE ASSESSEE CHALLENGED THE LEVY OF FEES U/S 23 4E BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 14/05/2015 WHICH IS AN EX -PARTE ORDER. THE LEARNED CIT(A), RELYING UPON THE DECISIONS OF HONB LE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA V. UNION OF INDIA [2015] 54 TAX MANN.COM 200 UPHELD THE LEVY OF FEES U/S 234E. AGGRIEVED, THE AS SESSEE IS UNDER APPEAL BEFORE US. 6. UPON DUE CONSIDERATION, WE FIND THAT PRESENT CON TROVERSY, UNDER IDENTICAL FACTUAL MATRIX, CAME UP FOR CONSIDERATION BEFORE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ITS RECENT DECISION TITLED AS M/S NATIONAL LAMINATE CORPORATION V/S ITO (ITA NO. 4902/MUM/2018 DATED 10 /12/2019). THE CO-ORDINATE BENCH, IN THE SAID ORDER (WHICH HAS BEE N AUTHORED BY ONE OF US), AFTER CONSIDERING THE STATUTORY PROVISIONS IN THE LIGHT OF LATEST JUDICIAL 5 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 PRONOUNCEMENTS, SETTLED THE CONTROVERSY IN ASSESSEE S FAVOR BY OBSERVING AS UNDER: - 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 THAT THE PROVISIONS OF LEVY OF LATE FILI NG FEES U/S 234E OF THE ACT AS INTRODUCED W.E.F. 01/07/2012 COULD NOT BE RE AD IN ISOLATION 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 APPLICABLE FOR ANY PERIOD PRIOR TO 01/06/2015. RELIANCE WAS PLACED ON THE DECISION 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 DECISI ON 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 COURT WAS STATED TO BE FOLLOWED IN B Y SAME COURT IN ITS SUBSEQUENT DECISION DATED 12/12/2017 RENDERED IN WR IT PETITION NO. 618/2015 FILED BY SHREE AYAPPA EDUCATIONAL CHARITABLE TRUST . HOWEVER, IT WAS ALSO POINTED OUT THAT THERE WAS A C ONFLICTING 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 CREATING A CHARGE FOR LEVY OF FEES FOR DEFAULTS IN FILING OF TDS STATEMENTS AND THE SAME COULD BE LEVI ED EVEN WITHOUT A REGULATORY PROVISION BEING FOUND IN SECTION 200A FO R COMPUTATION OF FEES. IN THE ABOVE BACKGROUND, IT WAS SUBMITTED THA T IN CASE OF CONFLICTING JUDGEMENT OF TWO NON-JURISDICTIONAL HIG H COURTS, THE VIEW FAVORABLE TO THE ASSESSEE SHOULD BE TAKEN IN TERMS OF THE DECISION OF HONBLE SUPREME COURT RENDERED IN CIT V/S VEGETABLE PRODUCTS LTD. (1972 88 ITR 192). 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 6 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 DECISIONS OF CO-ORDINATE JURISDICTION, THE LATER DE CISION IS TO BE PREFERRED IF IT WAS REACHED AFTER FULL CONSIDERATIO N OF THE EARLIER DECISIONS AND THEREFORE, UPHELD THE LEVY OF FEES U/ S 234E. SINCE THE DECISION OF HONBLE GUJARAT HIGH COURT WAS LATER IN POINT OF TIME AND RENDERED AFTER CONSIDERATION 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 FE ES CHARGED BY REVENUE U/S 234E WAS UPHELD. AGGRIEVED, THE ASSESSE E IS UNDER FURTHER APPEAL BEFORE US CHALLENGING THE AFORESAID 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 PART OF THE ASSESSEE TO DELIVER THE STATEMENT OF TDS WITHIN THE TIME PRESCRIBED U/S 200(3) OR SECTION 206C(3). SECTION 200A DEAL WI TH 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 COMPU TED 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 O NLY 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 26/08/2016) WHICH HAS SUBSEQUENTLY BEEN FOLLOWED BY SAME COURT WHILE ADJUDICATING WRIT PETITION NO. 618/2015 FILED BY SHREE AYAPPA EDUCATIONAL CHARITABLE TRUST . THE RELEVANT OBSERVATIONS OF HONBLE KARNATAKA HIGH COURT, FOR EASE OF REFERENCE, COULD BE EXTRACTED IN THE FOLLOWING MANNER: - 6. WE HAVE HEARD LEARNED SENIOR COUNSEL MR.KUMAR AND M R.A.SHANKAR, APPEARING FOR THE APPELLANTS AND MR.K.V.ARAVIND, LEARNED COUNSEL 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 UNDER: 7 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 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 DEDUCTOR IS REQUIRED TO FILE QUARTERLY STATEMENT OF SUCH TAXES DEDUCTED AT SOURCE BY HIM AS TDS AND FOR THE PERIOD IN QUESTION, THE RELEVANT DATES FOR FILING OF SUCH STATEMENT IS AS F OLLOWS: ( 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 PENALTY OF RS.1 00/- PER DAY FOR EACH DAY OF DEFAULT IN FILING TDS STATEMENT AND SUCH PROVISION ALSO CAM E TO BE INSERTED WITH EFFECT FROM 1.4.2005. ON 1.4.2010, SECTION 200A WAS INSERTED PR OVIDING FOR THE PROCESSING OF THE TDS STATEMENT AND THE CONSEQUENT ISSUANCE OF THE IN TIMATION TO THE DEDUCTOR, THE SAME DETERMINED AS PAYABLE BY IT OR REFUNDABLE BY IT. BU T, THE RELEVANT ASPECT IS THAT, IN INITIAL PROVISIONS OF SECTION 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 INSERTED . 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 TIM E PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SE CTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVER Y 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 ACCORDANCE W ITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 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-SECTION (3 ) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTE D AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER 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 8 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 PROVIDING FOR NO PENALTY UNDER THE SAID SECTION WIL L BE IMPOSED AFTER 1.7.2012 FOR FAILURE TO FILE TDS STATEMENT ON TIME POSSIBLY BECAUSE A SE PARATE SECTION 271H WAS INSERTED IN THE ACT. SECTION 271H WILL BE RELEVANT FOR OUR P URPOSE 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 IN SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SE CTION (3) OF SECTION 206C; OR ( B ) FURNISHES INCORRECT INFORMATION IN THE STATEMENT WH ICH 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 COL LECTED ALONG WITH THE FEE AND INTEREST, IF ANY, TO THE CREDIT OF THE CENTRAL GOVE RNMENT, HE HAD DELIVERED OR CAUSE TO BE DELIVERED THE STATEMENT REFERRED TO IN SUB SECTI ON (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C BEFORE THE EXPIR Y OF A PERIOD OF ONE YEAR FROM THE TIME PRESCRIBED FOR DELIVERING OR CAUSING TO BE DEL IVERED 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 SECTION (3 ) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTE D AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER 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 COMPUTED AT THE TIME OF PROCESSING OF THE RETURN AND THE INTIMATION COULD BE ISSUED SPECIFYING THE S AME PAYABLE BY THE DEDUCTOR AS FEE UNDER SECTION 234E OF THE ACT. SECTION 200A WOULD A LSO BE RELEVANT IN THE PRESENT MATTER. HENCE, THE SAME FOR READY REFERENCE IS REPR ODUCED AS UNDER: '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 (HEREAF TER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL B E PROCESSED IN THE FOLLOWING MANNER, NAMELY: ( A ) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COM PUTED AFTER MAKING THE FOLLOWIN G ADJUSTMENTS, NAMELY: 9 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 ( 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 COMPUTED IN ACCORDANCE WI TH THE PROVISIONS OF SECTION 234E; ( D ) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERM INED AFTER ADJUSTMENT OF THE AMOUNT COMPUTED UNDER CLAUS E (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTION 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT P AID 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 R EFUND 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 WHICH TH E 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 CLAI M, 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 SUCH RATE IS NOT IN ACCORDAN CE 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 STATEME NTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, 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 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 10 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 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 PRIOR T O 1.6.2015. IT WAS SUBMITTED THAT, WHEN NO EXPRESS AUTHORITY WAS CONFERRED BY THE STAT UTE UNDER SECTION 200A PRIOR TO 1.6.2015 FOR COMPUTATION OF ANY FEE UNDER SECTION 2 34E NOR THE DETERMINATION THEREOF, THE DEMAND OR THE INTIMATION FOR THE PREVIOUS PERIO D 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 EITHER UND ER SECTION 200(3) OF THE ACT OR UNDER SECTION 206C (3) OF THE ACT. SECTION 234E CAN BE SA ID AS A CHARGING SECTION GENERATING THE LIABILITY TO PAY THE FEE THEREFORE, IRRESPECTIV E OF A FACT OR THE ASPECT THAT SUB-SECTIONS (1C), (1D), 1(E) & (1F) WERE INSERTED BY WAY OF SUB STITUTION IN SECTION 200A, WHEN THE FEE WAS PAYABLE THE AFORESAID INSERTION OF THE AFORESAI D CLAUSE AND SECTION 200A (1) (C), (D), (E) AND (F) WOULD NOT RESULT INTO NULLIFYING T HE 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 WITHOUT 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 DELIVERED THE STATEMENT/S OF TDS WITHIN THE PRESCRIBED TIME. BUT, IN OUR VIEW, SECTION 234E CAN NOT 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 WAS I NSERTED IN THE ACT SIMULTANEOUSLY, SECTION 271H WAS ALSO INSERTED IN T HE ACT PROVIDING FOR THE PENALTY FOR FAILURE OF FURNISHING OF STATEMENTS ETC. THEREFORE, 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 S TATEMENTS 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 PROVI DED THAT NO PENALTY SHALL BE LEVIED FOR THE FAILURE REFERRED TO UNDER CLAUSE (A) OF SUB-SEC TION (1) IF THE PERSON PROVES THAT AFTER PAYING TDS WITH THE FEE AND INTEREST THE AMOUNT IS CREDITED AND HE HAD DELIVERED OR CAUSED TO DELIVER THE STATEMENT WITHIN ONE YEAR FRO M THE TIME PRESCRIBED FOR SUBMISSION OF THE SAID STATEMENT. TO PUT IT IN OTHER WORDS, FO R FAILURE TO SUBMIT THE STATEMENTS, THE PENALTY PROVIDED UNDER SECTION 271(1)(A) CANNOT BE IMPOSED IF THE DEDUCTOR COMPLIES WITH THE REQUIREMENT OF SUB-SECTION (3) OF SECTION 271H. HENCE, IT CAN BE SAID THAT THE FEE PROVIDED UNDER SECTION 234E WOULD TAKE OUT FROM THE RIGORS OF PENALTY UNDER SECTION 271H BUT OF COURSE SUBJECT TO THE OUTER LIM IT OF ONE YEAR AS PRESCRIBED UNDER 11 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 SUB-SECTION (3) OF SECTION 271H. IT CAN ALSO BE SAI D THAT WHEN THE PARLIAMENT INTENDED TO INSERT THE PROVISIONS OF SECTION 234E PROVIDING FOR FEE SIMULTANEOUSLY THE UTILITY OF SUCH FEE WAS FOR CONFERRING THE PRIVILEGE TO THE DE FAULTER-DEDUCTOR TO COME OUT FROM THE RIGORS OF PENAL PROVISION OF SECTION 271H. BE IT RE CORDED THAT, PRIOR TO SECTION 271H OF THE ACT INSERTED IN THE STATUTE BOOK, THE ENFORCEAB ILITY 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 WIT H 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 INSPECTIONS, 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 NOTICE OF DISCONTINUANCE OF HIS BUSINES S OR PROFESSION 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 FURNISH IT WITHIN THE TIME ALLOWED AND I N THE MANNER REQUIRED UNDER THOSE SUB-SECTIONS; OR ( F ) TO DELIVER OR CAUSE TO BE DELIVERED IN DUE TIME A C OPY OF THE D ECLARATION 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 REFERRED TO I N 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 SU B-SECTION (3) OF SECTION 206C; ( L ) TO DELIVER OR CAUSE TO BE DELIVERED THE STATEMENTS WITHIN THE TIME SPECIFIED IN SUB- 12 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 SECTION (1) OF SECTION 206A; [( M ) TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WIT HIN TH E TIME AS MAY BE PRESCRIBED UNDER SUB-SECTION (2A) OF SECTION 200 OR SUB-SECTIO N (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 REQUIRED BY SECTI ON 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-SECTION (3) OR UNDER SUB- SECTION (3A) OF SECTION 206C] SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTI BLE, 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-SECTION (3 ) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTE D AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER 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 TH E SUB-SECTION (3) OF SECTION 206C, NO PENALTY SHALL BE IMPOSED FOR TDS AFTER 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 SECTIO N 271H PROVIDING FOR PENAL PROVISION FOR SUCH FAILURE TO SUBMIT RETURN. WHEN THE PARLIAM ENT HAS SIMULTANEOUSLY BROUGHT ABOUT SECTION 234E, SECTION 271H AND THE AFORESAID PROVIS O TO SECTION 272A(2), IT CAN BE SAID THAT, THE FEE PROVIDED UNDER SECTION 234E IS C ONTEMPLATED TO GIVE A PRIVILEGE TO THE DEFAULTER TO COME OUT FROM THE RIGORS OF PENALTY PR OVISION UNDER SECTION 271H (1) (A) IF HE PAYS THE FEE WITHIN ONE YEAR AND COMPLIES WITH T HE 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 PART ICULAR PURPOSE WHICH IN THE PRESENT CASE IS TO COME OUT FROM RIGORS OF PENAL PROVISION OF SECTION 271H(1)(A), IT CANNOT BE SAID THAT THE PROVISIONS OF FEE SINCE CREATES A COU NTER 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 QUO. 21. HOWEVER, IF SECTION 234E PROVIDING FOR FEE WAS BRO UGHT ON THE STATE BOOK, KEEPING IN VIEW THE AFORESAID PURPOSE AND THE INTENTION THE N, THE OTHER MECHANISM PROVIDED FOR COMPUTATION OF FEE AND FAILURE FOR PAYMENT OF FEE U NDER SECTION 200A WHICH HAS BEEN BROUGHT ABOUT WITH EFFECT FROM 1.6.2015 CANNOT BE S AID AS ONLY BY WAY OF A REGULATORY 13 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 MODE OR A REGULATORY MECHANISM BUT IT CAN RATHER BE TERMED AS CONFERRING SUBSTANTIVE POWER UPON THE AUTHORITY. IT IS TRUE THAT, A REGULA TORY MECHANISM BY INSERTION OF ANY PROVISION MADE IN THE STATUTE BOOK, MAY HAVE A RETR OACTIVE CHARACTER BUT, WHETHER SUCH PROVISION PROVIDES FOR A MERE REGULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER UPON THE AUTHORITY WOULD ALSO BE A ASPECT WHICH MAY BE R EQUIRED 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 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 REGU LATORY 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 PROVIDED 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 SECTION 272A BY INSERTION OF PROVISO TO SECTION 272A(2), IT CAN BE SAID THAT A PARTICULAR SET UP FOR IMPOSITION AND TH E PAYMENT OF FEE UNDER SECTION 234E WAS PROVIDED BUT, IT DID NOT PROVIDE FOR MAKING OF DEMAND OF SUCH FEE UNDER SECTION 200A PAYABLE UNDER SECTION 234E. HENCE, CONSIDERING THE AFORESAID PECULIAR FACTS AND CIRCUMSTANCES, WE ARE UNABLE TO ACCEPT THE CONTENTI ON OF THE LEARNED COUNSEL FOR RESPONDENT-REVENUE THAT INSERTION OF CLAUSE (C) TO (F) UNDER SECTION 200A(1) SHOULD BE TREATED AS RETROACTIVE IN CHARACTER AND NOT PROSPEC TIVE. 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 PROSPE CTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE FIND THAT SUBST ITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVI NG PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY , THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U NDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 2 00A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1 .6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTE R INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCT OR TO REOPEN THE SAID QUESTION UNLESS 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 AGAINST 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 CAN BE SAID AS ILLEGAL A ND 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 SUCH, IT IS ON ACCOUNT OF THE INTIMATION GIVEN MAKING DEMAND OF THE FEES IN PURPORTED EXERCISE OF POWER UNDER SECTION 2 00A, THE SAME HAS NECESSITATED THE 14 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 APPELLANT-ORIGINAL PETITIONER TO CHALLENGE THE VALI DITY OF SECTION 234E OF THE ACT. IN VIEW OF THE REASONS RECORDED BY US HEREINABOVE, WHEN THE AMENDMENT MADE UNDER SECTION 200A OF THE ACT WHICH HAS COME INTO EFFECT ON 1.6.2 015 IS HELD TO BE HAVING PROSPECTIVE EFFECT, NO COMPUTATION OF FEE FOR THE DEMAND OR THE INTIMATION FOR THE FEE UNDER SECTION 234E COULD BE MADE FOR THE TDS DEDUCTED FOR THE RES PECTIVE 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 SECTION 234 E CAN BE SAID AS WITHOUT ANY AUTHORITY OF LAW AND THE SAME ARE QUASHED AND SET A SIDE 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 NOTICES UND ER SECTION 200A IS HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RELATES TO CO MPUTATION AND DEMAND OF FEE UNDER SECTION 234E, WE FIND THAT THE QUESTION OF FURTHER SCRUTINY FOR TESTING THE CONSTITUTIONAL VALIDITY OF SECTION 234E WOULD BE RENDERED AS AN AC ADEMIC EXERCISE BECAUSE THERE WOULD NOT BE ANY CAUSE ON THE PART OF THE PETITIONE RS TO CONTINUE TO MAINTAIN THE CHALLENGE TO CONSTITUTIONAL VALIDITY UNDER SECTION 234E OF THE ACT. AT THIS STAGE, WE MAY ALSO RECORD THAT THE LEARNED COUNSELS APPEARING FOR THE APPELLANT HAD ALSO DECLARED THAT IF THE IMPUGNED NOTICES UNDER 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 CO NSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. BUT, THEY SUBMITTED THAT THE QUESTION OF C ONSTITUTIONAL VALIDITY OF SECTION 234E MAY BE KEPT OPEN TO BE CONSIDERED BY THE DIVISION B ENCH AND THE JUDGMENT OF THE LEARNED SINGLE JUDGE MAY NOT CONCLUDE THE CONSTITUT IONAL 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 SECTION 23 4E OF THE ACT. SAVE AND EXCEPT TO OBSERVE THAT THE QUESTION OF CONSTITUTIONAL VALIDIT Y OF SECTION 234E OF THE ACT BEFORE THE DIVISION BENCH OF THIS COURT SHALL REMAIN 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 INTIMAT ION FOR PAYMENT OF FEE UNDER SECTION 234E AS THEY RELATE TO FOR THE PERIOD OF THE TAX DE DUCTED PRIOR TO 1.6.2015 ARE SET ASIDE. IT IS CLARIFIED THAT THE PRESENT 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 REOPENED FOR CLAIMING REFUND. THE JUDGMENT WILL HAV E PROSPECTIVE EFFECT ACCORDINGLY. IT IS FURTHER OBSERVED THAT THE QUESTION OF CONSTITUTI ONAL 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. 15 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 3.3 ON THE OTHER HAND, THE CASE OF THE REVENUE WOUL D DERIVE STRENGTH FROM THE CONTRARY DECISION OF HONBLE GUJA RAT HIGH COURT RENDERED IN RAJESH KOURANI V/S UNION OF INDIA (297 CTR 502 20/06/2017) WHEREIN THE HONBLE COURT HAS DECLINED TO CONCUR WI TH THE AFORESAID ADJUDICATION OF HONBLE KARNATAKA HIGH CO URT, BY OBSERVING AS UNDER: - 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 PRESCRIBED. W ITH 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. AS PER RULE 31 A OF THE RULES, THE PERSON RESPONSIBLE FOR DEDUCTION OF TAX IN TERMS OF SUB-SE CTION (3) OF SECTION 200 WOULD HAVE TO FILE QUARTERLY STATEMENTS IN PRESCRIBED FORM. SUB-R ULE (2) OF RULE 31A PRESCRIBED DATES BY WHICH SUCH STATEMENTS WOULD HAVE 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 PROVISION DID NO T 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 F ROM 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 ASSESSEES 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 HAVE CH ARGED 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 20 0, HE HAS INSTRUCTIONS NOT TO PRESS THE CHALLENGE TO C ONSTITUTIONALITY OF SECTION 234E OF THE ACT. HE HOWEVER MADE DETAILED SUBMISSIONS WITH RESP ECT TO THE OTHER TWO GRIEVANCES OF 16 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 THE PETITIONER. REGARDING RULE 31A OF THE RULES, HE POINTED OUT THAT THE LEGISLATURE HAS PRESCRIBED DIFFERENT TIME LIMITS FOR FILING STATEME NTS FOR THE GOVERNMENT AND THE REST OF THE ASSESSEES. THE SPECIAL CONCESSION TO THE GOVERN MENT AGENCIES WAS WHOLLY UNNECESSARY AND NOT BASED ON ANY RATIONAL. THE SAME DIFFICULTIES AND COMPLEXITIES WHICH ARE FACED BY GOVERNMENT AGENCIES WOULD ALSO B E FACED BY THE INDIVIDUAL ASSESSEES. 7. WITH RESPECT TO THE AMENDMENT IN SUB-SECTION (1) OF SECTION 200A, COUNSEL SUBMITTED THAT PRIOR TO SUCH AMENDMENT, THERE WAS NO MECHANIS M PROVIDED UNDER THE ACT FOR COLLECTION OF FEE UNDER SECTION 234E OF THE ACT. TH E 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 OF FICER, PURPORTED TO BE UNDER SECTION 200A OF THE ACT, IN WHICH, HE HAD 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 WHICH, THE TRIBUNAL HELD THAT PR IOR TO 01.06.2015, THE ASSESSING OFFICER WAS NOT EMPOWERED TO CHARGE FEE UNDER SECTION 234E OF THE ACT. COUNSEL ALSO RELIED ON A DECISION OF DIVISION BENCH OF KARNATAKA HIGH COUR T IN CASE OF FATHERAJ SINGHVI V. UNION OF INDIA [2016] 73 TAXMANN.COM 252, IN WHICH, THE COURT HAS TAKEN A VIEW THAT THE AMENDMENT IN SECTION 200A WITH EFFECT FROM 01.0 6.2015 CANNOT HAVE RETROSPECTIVE EFFECT. 8. ON THE OTHER HAND LEARNED COUNSEL SHRI MANISH BHATT FOR THE DEPARTMENT OPPOSED THE PETITION CONTENDING THAT TWO DIFFERENT TIME LIMITS 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 WO RKLOAD, THE LEGISLATURE THOUGHT IT FIT TO GRANT 15 DAYS ADDITIONAL TIME TO THE GOVERNMENT AGENCIES TO FILE THE STATEMENTS. THIS IS THEREFORE NOT A CASE OF DISCRIMINATION, BUT A CA SE 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. SECTION 200A MERELY PROVIDES A MECHANISM. SUCH A PROVISION CANNOT GOVERN THE CHARGING PROVISION. E VEN IN ABSENCE OF AMENDMENT IN SECTION 200A, THE ASSESSING OFFICER WAS ALWAYS AUTH ORIZED 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 T HEN 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.), WH ERE, IN THE CONTEXT OF CHALLENGE TO THE VIRES TO THE SECTION 234E OF THE A CT, 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 PRESCRIBE D PERIODS AND TO FILE THE SAME WITHIN 17 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 THE PRESCRIBED TIME. SECTION 200C OF THE ACT MAKES SIMILAR PROVISION FOR THE PERSON RESPONSIBLE FOR THE COLLECTION OF TAX AT SOURCE TO DEPOSIT THE SAME WITH THE GOVERNMENT REVENUE AND TO FILE A STATEMENT WITHIN THE PRESCRIB ED 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 MECH ANISM FOR PROCESSING A STATEMENT FILED UNDER SECTION 200 OF THE ACT AND ENABLES THE ASSESSING OFFICER TO MAKE SOME ADJUSTMENTS AND TO INTIMATE THE FINAL OUTCOME TO TH E 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 TIM E PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SE CTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVER Y 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 ACCORDANCE W ITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 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 DEDU CTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER 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 STATEMENTS 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 THAN RUPEES TE N THOUSAND BUT NOT MORE THAN RUPEES ONE LAKH. UNDER SUB-SECTION (3) OF SECTION 271H HOW EVER, SUCH PENALTY WOULD BE AVOIDED IF THE ASSESSEE PROVES THAT HE HAD PAID THE TAX DEDUCTED OR COLLECTED ALONGWITH INTEREST AND HE HAD FILED THE NECESSARY STATEMENT W ITHIN ONE YEAR FROM THE TIME PRESCRIBED FOR FILING SUCH STATEMENTS. WE MAY ALSO RECORD THAT CLAUSE (K) OF SUB-SECTION (2) OF SECTION 272A PROVIDES FOR PENALTY FOR FAILUR E TO DELIVER THE STATEMENT WITHIN THE TIME SPECIFIED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C AT A RATE OF RUPEES ONE HUNDRED FOR EV ERY DATE DURING WHICH THE FAILURE 18 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 CONTINUES. HOWEVER, WITH EFFECT FROM 01.07.2012, A PROVISO WAS ADDED LIMITING THE EFFECT OF THIS PROVISION UPTO 01.07.2012. IN OTHER WORDS, AFTER 01.07.2012, THE PENALTY PROVISION OF SECTION 271H WOULD APPLY IN SUCH CASES OF DEFAUL TS. 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 (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL B E PROCESSED IN THE FOLLOWING MANNER, NAMELY: ( A ) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COM PUTED AFTER MAKING THE FOL LOWING 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 DETERM INED AFTER ADJUSTMENT OF AMOUNT COMPUTED UNDER CLAUSE (B ) AGAI NST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OT HERWISE 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 WHICH TH E 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 CLAI M, 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 ACCORDANC E 19 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 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 STATEME NTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, 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 . 200A . (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE [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 STATEMENT SHALL B E PROCESSED IN THE FOLLOWING MANNER, NAMELY: ( A ) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COM PUTED AFTER MAKING THE F OLLOWING 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 DEDUCTOR SHALL BE DETER MINED AFTER ADJUSTMENT OF THE AMOUNT COMPUTED UNDER CLAUS E (B) AND CLAUS E (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 O R GENERATED AND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF R EFUND 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 WHICH TH E STATEMENT IS FILED. 20 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORREC T CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHALL MEAN A CLAI M, 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 I TEM 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 STATEME NTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE TAX PAYABLE BY, 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 RU LES PROVIDES FOR FILING OF THE STATEMENTS IN PRESCRIBED FORMS AS REQUIRED UNDER SU B-SECTION (3) OF SECTION 200. SUB- RULE (2) OF RULE 31A LAYS DOWN THE TIME LIMIT FOR F ILING 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 TH E DEDUCTOR IS AN OFFICE OF GOVERNMENT; AND (II) THE DUE DATE SPECIFIED IN THE CORRESPONDING ENTRY I N COLUMN (4) OF THE SAID TAB LE, IF THE DEDUCTOR IS A PERSON OTHER THAN THE PERSON REFERRED 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 FOLLO WING THE FINANCIAL YEAR IN WHICH THE 15TH MAY OF THE FINANCIAL YEAR IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE 21 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 DEDUCTION IS MADE. 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 OFF ICE OF GOVERNMENT AND IN CASE OF A DEDUCTOR IS A PERSON OTHER THAN THE OFFICE OF THE G OVERNMENT. CONSISTENTLY, THE OFFICE OF THE GOVERNMENT IS GRANTED 15 DAYS EXTRA TIME AS COM PARED 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 STATEMENT LATEST BY 1 5TH JULY OF THE SAME YEAR, WHEREAS FOR THE GOVERNMENT OFFICE, THE LAST DATE FOR FILING SUCH STATEMENT WOULD BE 31ST JULY OF THE SAID YEAR. THIS 15 DAYS EXTRA TIME IS A CONSIST ENT FEATURE IN ALL FOUR QUARTERS. THE SHORT QUESTION IS, DID THE LEGISLATURE DISCRIMINATE IN DOING SO? IT IS WELL SETTLED THAT ARTICLE 14 DOES NOT PROHIBIT REASONABLE CLASSIFICAT ION BUT FROWNS UPON CLASS LEGISLATION. IN THE AFFIDAVIT IN REPLY FILED, THE RESPONDENTS HA VE POINTED OUT THAT MULTIPLE AGENCIES ARE INVOLVED IN EVERY TRANSACTION IN THE GOVERNMENT OFF ICES AND THE SAME THEREFORE CANNOT BE COMPARED WITH THE PRIVATE INDIVIDUALS OR BUSINES S HOUSES. WE DO NOT FOUND THAT THE EXTRA TIME OF 15 DAYS FOR THE GOVERNMENT TO FILE A RETURN OF DEDUCTION OF TAX AT SOURCE IS IN ANY MANNER EITHER UNREASONABLE OR DISCRIMINATORY . IF THE LEGISLATURE FOUND IT APPROPRIATE TO GRANT SLIGHTLY LONGER PERIOD TO THE GOVERNMENT AGENCIES LOOKING TO THE COMPLEX NATURE OF TRANSACTIONS INVOLVED, THE VOLUME AND TURNOVER OF SUCH TRANSACTIONS AND FILTERING NECESSARY STATEMENTS REQUIRED AT MANY STAGES, IN OUR OPINION, THE SAME WAS PERFECTLY LEGITIMATE. LOOKING TO THE DIFFERENCE S BETWEEN THE GOVERNMENT AGENCIES AND PRIVATE ASSESSEES IN THE CONTEXT OF PROVIDING T HE LAST DATE FOR FILING THE STATEMENTS, DO NOT FORM A HOMOGENEOUS CLASS WHICH CANNOT BE FUR THER 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 RELEVANT STATU TORY PROVISIONS. THE PICTURE THAT EMERGES IS THAT PRIOR TO 01.07.2012, THE ACT CONTAI NED A SINGLE PROVISION IN SECTION 272A PROVIDING FOR PENALTY IN CASE OF DEFAULT IN FILING THE STATEMENTS IN TERMS OF SECTION 200 OR PROVISO TO SECTION 206C. SUCH PENALTY WAS PRESCRIBE D AT THE RATE OF RS.100 FOR EVERY DAY DURING WHICH THE FAILURE 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 CHARGING OF FEE FOR LATE FILING OF THE STATEMENTS. SUCH FEE WOULD BE LEVIED AT THE RATE OF RS.200/- FOR EVERY DAY OF FAILURE SUBJE CT TO THE MAXIMUM AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE AS THE CASE MAY BE. SECTI ON 271H WAS ALSO INTRODUCED FOR THE FIRST TIME FOR LEVYING PENALTY FOR FAILURE TO FURNI SH THE STATEMENTS. SUCH PENALTY WOULD BE IN THE RANGE OF RS.10,000/- AND RS.1 LAKH. NO PENAL TY WOULD BE IMPOSED IF THE TAX IS DEPOSITED WITH FEE AND INTEREST AND THE STATEMENT I S FILED WITHIN ONE YEAR OF THE DUE DATE. WITH ADDITION TO THESE TWO PROVISIONS PRESCRI BING FEE AND PENALTY RESPECTIVELY, CLAUSE (K) OF SUB-SECTION (2) OF SECTION 272A BECAM E REDUNDANT AND BY ADDING A PROVISO TO THE SAID SECTION, THIS EFFECT WAS THEREF ORE 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 22 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 MAKING THE COMPLIANCE OF DEDUCTION AND COLLECTION O F TAX AT SOURCE, DEPOSITING IT WITH GOVERNMENT REVENUE AND FILING OF THE STATEMENTS MOR E 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 PERSON R ESPONSIBLE TO DO SO AND AUTHORIZES THE ASSESSING OFFICER TO MAKE CERTAIN ADJUSTMENTS WHICH ARE PRIMA-FACIE OR ARITHMETICAL IN NATURE. THE OFFICER WOULD THEN SEND AN INTIMATION O F A STATEMENT TO THE ASSESSEE. PRIOR TO 01.06.2015, THIS PROVISION DID NOT INCLUDE ANY R EFERENCE TO THE FEE PAYABLE UNDER SECTION 234E OF THE ACT. BY RECASTING SUB-SECTION ( 1), THE NEW CLAUSE-C PERMITS THE AUTHORITY TO COMPUTE THE FEE, IF ANY, PAYABLE BY TH E ASSESSEE UNDER SECTION 234E OF THE ACT AND BY VIRTUE OF CLAUSE-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 FEE FOR CER TAIN DEFAULTS IN FILING THE STATEMENTS. UNDER NO CIRCUMSTANCES A MACHINERY PROVISION CAN OV ERRIDE OR OVERRULE A CHARGING PROVISION. WE ARE UNABLE TO SEE THAT SECTION 200A O F THE ACT CREATES ANY CHARGE IN ANY MANNER. IT ONLY PROVIDES A MECHANISM FOR PROCESSING A STATEMENT FOR TAX DEDUCTION AND THE METHOD IN WHICH THE SAME WOULD BE DONE. WHEN SE CTION 234E HAS ALREADY CREATED A CHARGE FOR LEVYING FEE THAT WOULD THEREAFTER NOT BEEN NECESSARY TO HAVE YET ANOTHER PROVISION CREATING THE SAME CHARGE. VIEWING SECTION 200A AS CREATING A NEW CHARGE WOULD BRING ABOUT A DICHOTOMY. IN PLAIN TERMS, THE PROVISION IN OUR UNDERSTANDING IS A MACHINERY PROVISION AND AT BEST PROVIDES FOR A MECH ANISM FOR PROCESSING AND COMPUTING BESIDES OTHER, 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 COLLECT T HE 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 RAISED. IN OTH ER WORDS, WE CANNOT SUBSCRIBE TO THE VIEW THAT WITHOUT A REGULATORY PROVISION BEING FOUND FOR SECTION 200A FOR COMPUTATION OF FEE, THE FEE PRESCRIBED UNDER SECTIO N 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 SECTI ON 200A WOULD BE IN NATURE OF CLARIFICATORY AMENDMENT. EVEN IN ABSENCE OF SUCH PR OVISION, AS NOTED, IT WAS ALWAYS OPEN FOR THE REVENUE TO CHARGE THE FEE IN TERMS OF SECTION 234E OF THE ACT. BY AMENDMENT, THIS ADJUSTMENT WAS BROUGHT WITHIN THE F OLD OF SECTION 200A OF THE ACT. THIS WOULD HAVE ONE DIRECT EFFECT. AN ORDER PASSED UNDER SECTION 200A OF THE ACT IS RECTIFIABLE UNDER SECTION 154 OF THE ACT AND IS ALS O APPEALABLE UNDER SECTION 246A. IN ABSENCE OF THE POWER OF AUTHORITY TO MAKE SUCH ADJU STMENT UNDER SECTION 200A OF THE 23 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 ACT, ANY CALCULATION OF THE FEE WOULD NOT PARTAKE T HE CHARACTER OF THE INTIMATION UNDER SAID PROVISION AND IT COULD BE ARGUED THAT SUCH AN ORDER WOULD NOT BE OPEN TO ANY RECTIFICATION OR APPEAL. UPON INTRODUCTION OF THE R ECASTED CLAUSE (C), THIS SITUATION ALSO WOULD BE OBVIATED. EVEN PRIOR TO 01.06.2015, IT WAS ALWAYS OPEN FOR THE REVENUE TO CALCULATE FEE IN TERMS OF SECTION 234E OF THE ACT. THE KARNATAKA HIGH COURT IN CASE OF FATHERAJ SINGHVI ( SUPRA ) HELD THAT SECTION 200A WAS NOT MERELY A REGULATOR Y PROVISION, BUT WAS CONFERRING SUBSTANTIVE POWER ON THE AUTHORI TY. THE COURT WAS ALSO OF THE OPINION THAT SECTION 234E OF THE ACT WAS IN THE NAT URE OF PRIVILEGE 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 S ECTION 234E OF THE ACT IS NOT IN LIEU OF THE PENALTY OF SECTION 271H OF THE ACT. BOTH ARE IN DEPENDENT LEVIES. SECTION 271H ONLY PROVIDES THAT SUCH PENALTY WOULD NOT BE LEVY IF CER TAIN CONDITIONS ARE FULFILLED. ONE OF THE CONDITIONS IS THAT THE TAX WITH FEE AND INTEREST IS PAID. THE ADDITIONAL CONDITION BEING THAT THE STATEMENT IS FILED 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 OF CHARGIN G 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 CONCERNING CHARGING AND COMPUTING CAPITAL GAIN OBSERVED THAT NONE OF THESE PROVISIONS SUGGEST THAT THEY INC LUDE AN ASSET IN THE ACQUISITION OF WHICH NO COST CAN BE CONCEIVED. IN SUCH A CASE, THE ASSET IS SOLD AND THE CONSIDERATION IS BROUGHT TO TAX, WHAT IS CHARGED IS A CAPITAL VAL UE OF THE ASSET AND NOT ANY PROFIT OR GAIN. THIS DECISION THEREFORE WOULD NOT APPLY IN TH E 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 TRIBUNA L AS REFERRED TO IN THE IMPUGNED ORDER HAS BEEN RENDERED PRIOR TO THE A FORESAID DECISION OF HONBLE GUJARAT HIGH COURT AND THEREFORE, NO GUI DANCE 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 C OURT FOLLOWING THE LAW OF STARE DECISIS AS EXPLAINED BY HONBLE BOMBAY HIGH COURT IN CIT V/S THANA ELECTRICITY SUPPLY LTD. (206 ITR 727 22/04/1993) WHEREIN HONBLE COURT HAS HELD AS UNDER: - 24 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 ON A CAREFUL CONSIDERATION OF THE SUBMISSIONS OF LE ARNED COUNSEL FOR THE ASSESSEE, WE FIND THAT BEFORE TAKING UP THE ISSUE INVOLVED IN TH E QUESTION OF LAW REFERRED TO US IN THIS CASE FOR CONSIDERATION, IT IS NECESSARY TO FIRST DE CIDE 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 OTHER HIGH COUR T AND TO DECIDE ACCORDINGLY EVEN IF ITS OWN VIEW IS CONTRARY THERETO, IN VIEW OF THE PR ACTICE FOLLOWED BY THIS COURT IN SUCH MATTERS. BECAUSE, IF WE ARE TO ACCEPT THIS SUBMISSI ON, IT WILL BE AN EXERCISE IN FUTILITY TO EXAMINE THE REAL CONTROVERSY BEFORE US WITH A VIEW TO DECIDE THE ISSUE, AS IN THAT CASE IN VIEW OF THE CALCUTTA DECISION WHATEVER MAY BE OU R DECISION ON THE QUESTION OF LAW REFERRED TO US, WE WOULD BE BOUND TO FOLLOW THE DEC ISION OF THE CALCUTTA HIGH COURT AND ANSWER THE QUESTION ACCORDINGLY. THIS SUBMISSION, I N OUR OPINION, IS NOT TENABLE AS IT GOES COUNTER NOT ONLY TO THE POWERS OF THIS COURT T O HEAR THE REFERENCE AND DECIDE THE QUESTIONS OF LAW RAISED THEREIN AND TO DELIVER ITS JUDGMENT THEREON BUT ALSO TO THE DOCTRINE OF BINDING PRECEDENT KNOWN AS STARE DECISI S. WE SHALL DEAL WITH THE REASONS FOR 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 CONTENTION . IN OUR OPINION, THE OBSERVATIONS IN THOSE DECISIONS HAVE NOT BEEN PROPERLY APPRECIATED. THEY HAVE BEEN TOO WIDELY INTERPRETED. THERE APPEARS TO BE A MISCONCEPTION AB OUT THE NATURE THEREOF AND THEIR BINDING EFFECT. WE SHALL ALSO REFER TO THOSE DECISI ONS AND THE RELEVANT OBSERVATIONS THEREIN AND DISCUSS THEIR NATURE. BEFORE DOING THAT , IT MAY BE EXPEDIENT TO BRIEFLY STATE THE DOCTRINE OF BINDING PRECEDENT, COMMONLY KNOWN A S STARE DECISIS. AT THE OUTSET, IT MAY BE APPROPRIATE TO POINT OUT THE WELL-SETTLED LE GAL 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 PO INT OF VIEW OF PRECEDENT VALUE OR THEIR BINDING EFFECT. IT WILL BE NECESSARY IN THIS CASE T O EXPLAIN THIS DISTINCTION. BUT BEFORE WE DO SO, WE MAY DISCUSS THE PRINCIPLE OF BINDING PREC EDENT. THIS WILL TAKE US TO THE QUESTION 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 COURT IS THE H IGHEST COURT OF THE COUNTRY. THAT BEING SO, SO FAR AS THE DECISIONS OF THE SUPREME COURT AR E CONCERNED, IT HAS BEEN STATED IN ARTICLE 141 OF THE CONSTITUTION 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 DIVISION BENCHES A ND OF THE FULL BENCHES OF HIS COURT AND OF THE SUPREME COURT. EQUALLY WELL-SETTLED IS T HE POSITION THAT WHEN A DIVISION 25 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 BENCH OF THE HIGH COURT GIVES A DECISION ON A QUEST ION OF LAW, IT SHOULD GENERALLY BE FOLLOWED BY A CO-ORDINATE BENCH OF THE SAME HIGH CO URT. IF THE CO-ORDINATE BENCH IN THE SUBSEQUENT CASE WANTS THE EARLIER DECISION TO BE RE CONSIDERED, 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 BINDI NG PRECEDENT ON THE MADRAS HIGH COURT ON THE BASIS OF THE PRINCIPLE OF STARE DECISI S, CLEARLY HELD THAT SUCH A DECISION CAN AT BEST HAVE PERSUASIVE EFFECT AND NOT THE FORCE OF BINDING PRECEDENT ON THE MADRAS HIGH COURT. REFERRING TO THE STATES REORGANISATION ACT, IT WAS OBSERVED THAT THERE WAS NOTHING IN THE SAID ACT OR ANY OTHER LAW WHICH EXAL TS THE RATIO OF THOSE DECISIONS TO THE STATUS OF A BINDING LAW NOR COULD THE RATIO DECIDEN DI OF THOSE DECISIONS BE PERPETUATED BY INVOKING THE DOCTRINE OF STARE DECISIS. THE DOCT RINE OF STARE DECISIS CANNOT BE STRETCHED THAT FAR AS TO MAKE THE DECISION OF ONE H IGH COURT A BINDING PRECEDENT FOR THE OTHER. THIS DOCTRINE IS APPLICABLE ONLY TO DIFFEREN T BENCHES OF THE SAME HIGH 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 COURTS, IT IS IMPLICIT IN THE POWER OF SUPERVISION CONFERRED ON A SUPERIOR TRIBUNAL THAT THE TRIBUNALS SUBJECT TO ITS SUPERVISION WOULD CONFIRM TO THE LAW LAID DOWN BY IT. IT IS IN THAT V IEW 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 : 'WE, THEREFORE, HOLD THAT THE LAW DECLARED BY THE H IGHEST COURT IN THE STATE IS BINDING ON AUTHORITIES OR TRIBUNALS UNDER ITS SUPERINTENDENCE, 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 OTHER T HING, IT IS THE QUALITY OF CERTAINTY. THAT QUALITY WOULD TOTALLY DISAPPEAR IF JUDGES OF C O-ORDINATE JURISDICTION IN A HIGH COURT START OVERRULING ONE ANOTHER'S DECISIONS. IF ONE DI VISION BENCH OF A HIGH COURT IS UNABLE TO DISTINGUISH A PREVIOUS DECISION OF ANOTHER DIVIS ION 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 A NOTHER SINGLE JUDGE ON A QUESTION OF LAW IS WRONG AND GIVES 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) : 26 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 '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 IN TH E CASE OF SUPREME COURT, 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 THAT A LL THE TRIBUNALS SUBJECT TO ITS SUPERVISION SHOULD CONFORM TO THE LAW LAID DOWN BY IT. SUCH OBEDIENCE WOULD ALSO BE CONDUCIVE TO THEIR SMOOTH WORKING; OTHERWISE THERE WOULD BE CONFUSION IN THE ADMINISTRATION OF LAW AND RESPECT FOR LAW WOULD IRR ETRIEVABLY 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 DECIDENDI TH AT 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 T HE RATIO OF THAT DECISION, FOR IT IS THE RATIO WHICH BINDS AS A PRECEDENT AND NOT THE CONCLU SION.' A CASE IS ONLY AN AUTHORITY FOR WHAT IT ACTUALLY DECIDES AND NOT WHAT MAY COME TO F OLLOW 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. BEYO ND THOSE WALLS AND DE HORS THE MILIEU WE CANNOT IMPART ETERNAL VERNAL VALUE TO THE DECISI ON, EXALTING THE DOCTRINE OF PRECEDENTS INTO A PRISON-HOUSE OF BIGOTRY, REGARDLE SS OF VARYING CIRCUMSTANCES AND MYRIAD DEVELOPMENTS. REALISM DICTATES THAT A JUDGME NT HAS TO BE READ, SUBJECT TO THE FACTS DIRECTLY PRESENTED FOR CONSIDERATION AND NOT AFFECTING THOSE MATTERS WHICH MAY LURK IN THE RECORD. WHATEVER BE THE POSITION OF A SUBORD INATE COURT'S CASUAL OBSERVATIONS, GENERALISATIONS AND SUBSILENTIO DETERMINATIONS MUST BE JUDICIOUSLY READ BY COURTS OF 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 OBITER 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 CHARACTER OF OBI TER. OBITER OBSERVATIONS, AS SAID BY BHAGWATI J. (AS HIS LORDSHIP THEN WAS) IN ADDL. DISTRICT MAGISTRATE, JABALPUR V. SHIVAHANT SHUKLA, AIR 1976 SC 1207, 1378, WOULD UNDOUBTEDLY BE ENTITL ED TO GREAT WEIGHT, BUT 'AN OBITER CANNOT TAKE THE PLACE OF THE RATIO. JUDGES ARE NOT ORACLES'. SUCH OBSERVATIONS DO NOT HAVE ANY BINDING EFFECT AND THE Y 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 AUTHORITATIVE OPINION MUST BE DIST INGUISHED FROM PROPOSITIONS ASSUMED BY THE COURT TO BE CORRECT FOR THE PURPOSE OF DISPO SING OF THE PARTICULAR CASE. THIS 27 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 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 JUDGMENT H AVE TO BE CONSIDERED IN THE LIGHT OF THE QUESTIONS WHICH WERE BEFORE THIS COURT. A DECIS ION OF THIS COURT TAKES ITS COLOUR FROM THE QUESTIONS INVOLVED IN THE CASE IN WHICH IT IS R ENDERED AND, WHILE APPLYING THE DECISION TO A LATER CASE, THE COURTS MUST CAREFULLY TRY TO ASCERTAIN THE TRUE PRINCIPLE LAID DOWN BY THE DECISION OF THIS COURT AND NOT TO PICK OUT WORDS OR SENTENCES FROM THE JUDGMENT, DIVORCED FROM THE CONTEXT OF THE QUESTION S UNDER CONSIDERATION BY THIS COURT, TO SUPPORT THEIR REASONING.' 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 CONTAI NING A FULL EXPOSITION OF THE LAW ON A QUESTION WHEN THE QUESTION DID NOT EVEN FALL 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 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 DE CISION OF ANOTHER S INGLE 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 28 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 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 ENGI NEER 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 DE CISIONS OF THE SUPREME COURT WHICH ARE BINDING O N ALL COURTS IN THE COUNTRY BY VIRTUE OF ARTICLE 14 1 OF THE CONSTITUTION. 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 FAVORAB LE DECISION RENDERED BY HONBLE KARNATAKA HIGH COURT BY DRAWING ANALOGY FROM THE 29 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 DECISION 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 CONSTRUCTIONS OF TAXING STATUTES, TH E ONE THAT FAVORS THE ASSESSEE 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 LAT E FILING FEES UNDER SECTION 234E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 200A 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 IS SUED 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 ORDERS OF TRIBUNAL, WHE REIN THE ISSUE HAS BEEN DECIDED IN RESPECT OF LEVY OF LATE FILING FEES UNDER SECTION 2 34E OF THE ACT, IN THE ABSENCE OF EMPOWERMENT BY THE ACT UPON ASSESSING OFFICER TO LE VY SUCH FEES WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT. THE TRIBU NAL 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 UND ER: '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 OFFICER UNDE R 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 I S DELETED. THE INTIMATION ISSUED BY THE ASSESSING OFFICER WAS BEYOND THE SCOPE OF ADJUS TMENT PROVIDED UNDER SECTION 200A OF THE ACT AND SUCH ADJUSTMENT COULD NOT STAND IN T HE 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 BEEN 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 APPLIC ABLE FOR THE PERIOD OF RESPECTIVE ASSESSMENT YEARS PRIOR TO 01.06.2015. THE RELEVANT FINDINGS OF THE HON'BLE HIGH COURT ARE IN PARAS 21 AND 22, WHICH READ AS UNDER: '21. HOWEVER, IF SECTION 234E PROVIDING FOR FEE WAS BROUGHT ON THE STATE BOOK, KEEPING IN VIEW THE AFORESAID PURPOSE AND THE INTENTION THE N, THE OTHER MECHANISM PROVIDED FOR 30 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 COMPUTATION OF FEE AND FAILURE FOR PAYMENT OF FEE U NDER SECTION 200A WHICH HAS BEEN BROUGHT ABOUT WITH EFFECT FROM 1.6.2015 CANNOT BE S AID 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 REGULA TORY MECHANISM BY INSERTION OF ANY PROVISION MADE IN THE STATUTE BOOK, MAY HAVE A RETR OACTIVE CHARACTER BUT, WHETHER SUCH PROVISION PROVIDES FOR A MERE REGULATORY MECHA NISM OR CONFERS SUBSTANTIVE POWER UPON THE AUTHORITY 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 REQUIRED TO BE CONSIDERED AND EXAMINED. NOT ONLY TH AT, BUT, IF THE MODE AND THE MANNER IS NOT EXPRESSLY PRESCRIBED, THE PROVISIONS MAY ALSO BE VULNERABLE. ALL SUCH ASPECTS WILL BE REQUIRED TO BE CONSIDERED BEFORE ON E CONSIDERS REGULATORY 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 SECTION 272A BY INSERTION OF PROVISO TO SECTION 272A(2), IT CAN BE SAID THAT A PARTICULAR S ET 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 UNDER SECTION 2 34E. HENCE, CONSIDERING THE AFORESAID PECULIAR FACTS AND CIRCUMSTANCES, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LEARNED COUNSEL FOR RESPONDENT-REVENUE THAT INS ERTION 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 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 PROSPE CTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE FIND THAT SUBST ITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVI NG PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY , THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U NDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 2 00A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1 .6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTE R INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCT OR TO REOPEN THE SAID QUESTION UNLESS 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 OF THE ACT AS TH EY RELATE FOR THE PERIOD OF TAX DEDUCTED AT SOURCE PRIOR TO 01.06.2015 WERE BEING S ET ASIDE. 31 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 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 PAYMENT OF FEES UNDER SECTION 200A OF THE ACT WHICH WAS BROUGHT ON STATUTE W.E.F. 01.06.2015. THE SAID AMENDMENT WAS HELD TO BE PROSPECTIVE IN NATURE AND HENCE, NOTICES ISSUED UND ER SECTION 200A OF THE ACT FOR COMPUTATION AND INTIMATION FOR PAYMENT OF LATE FILI NG FEES UNDER SECTION 234E OF THE ACT RELATING TO THE PERIOD OF TAX DEDUCTION PRIOR TO 01 .06.2015 WERE NOT MAINTAINABLE AND WERE SET ASIDE BY THE HON'BLE HIGH COURT. IN VIEW O F 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 PRESENT CASE, WHERE THE RETURNS OF TDS WERE FILED FOR EACH OF THE QUARTERS AFTER 1ST DAY OF JUNE, 2015 AND EVEN THE ORDER CHAR GING LATE FILING FEES WAS PASSED AFTER JUNE, 2015, THEN THE SAME ARE MAINTAINABLE, SINCE T HE AMENDMENT HAD COME INTO EFFECT. THE CIT(A) HAS OVERLOOKED THE FACT THAT NOT ICES UNDER SECTION 200A OF THE ACT WERE ISSUED FOR COMPUTING AND CHARGING LATE FILING FEES UNDER SECTION 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 EVE N WHERE 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 FOR THE P ERIOD 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 AFTER J UNE, 2015 AND EVEN IN CASES WHERE THE ASSESSING OFFICER PROCESSED THE SAID TDS RETURN S AFTER JUNE, 2015. ACCORDINGLY, WE HOLD THAT INTIMATION ISSUED BY ASSESSING OFFICER UN DER SECTION 200A OF THE ACT IN ALL THE APPEALS DOES NOT STAND AND THE DEMAND RAISED BY CHA RGING LATE FILING FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETE D. 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 POIN TED OUT THAT THE ISSUE IS SETTLED IN FAVOUR OF ASSESSEE BY THE HON'BLE HIGH COURT OF KAR NATAKA IN THE CASE OF FATHERAJ SINGHVI ( SUPRA ). SINCE WE HAVE ALREADY RELIED ON THE SAID RATIO L AID DOWN BY THE HON'BLE HIGH COURT OF KARNATAKA, THE CIT(A) HAS MIS-REFERRE D TO BOTH DECISIONS OF HON'BLE HIGH COURT OF KARNATAKA AND HON'BLE HIGH COURT OF GUJARA T; BUT THE CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS DIFFERENCE OF OPINION BETWEEN DIFFERENT 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 JURISDI CTIONAL HIGH COURT. THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA V. UNION OF INDIA [2015] 54 TAXMANN.COM 200 HAD DECIDED THE CONSTITUTIONAL VALIDITY OF PROV ISIONS OF SECTION 234E OF THE ACT AND HAD HELD THEM TO BE ULTRA VIRES BUT HAD NOT DECIDED THE SECOND ISSUE OF AMENDMENT BROUGHT TO SECTION 200A OF THE ACT W.E.F. 01.06.201 5. IN VIEW THEREOF, RESPECTFULLY 32 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE HIGH C OURT OF KARNATAKA AND PUNE BENCH OF TRIBUNAL IN SERIES OF CASES, WE DELETE THE LATE FIL ING 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 INTIMATION UN DER SECTION 200A OF THE ACT AS THE BASIS, WHEREAS THE ASSESSEE HAD FILED APPEALS BEFOR E CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE ACT. THE CIT(A) HAD NOTED THAT RECTIFICATION APPLICATION WAS FILED IN FEBRUARY, 2018 WHICH WAS REJECTED BY CPC O N THE SAME DAY. THE CIT(A) WAS OF THE VIEW THAT THERE WAS NO MERIT IN CONDONATION OF DELAY, WHEREIN APPEALS WERE FILED BEYOND THE PERIOD PRESCRIBED. THE ASSESSEE HAD FILE D APPEALS AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE ACT, HENCE THE TIME PERIOD OF APPEALS FILED BY ASSESSEE BEFORE THE CIT(A) HAVE TO BE COMPUTED FROM THE DATE OF ORD ER PASSED UNDER SECTION 154 OF THE ACT AND NOT FROM THE DATE OF ISSUE OF INTIMATION. T HUS, THERE IS NO MERIT IN THE ORDER OF CIT(A) IN DISMISSING THE APPEALS OF ASSESSEE ON THI S 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 H ELD 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 OF TH E 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 FILED THE APPEAL BEFORE T HE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE ACT. THE SAID APPLI CATION FOR RECTIFICATION UNDER SECTION 154 WAS FILED ON 08-06-2017/09-03-2017 IN THE RESPE CTIVE YEARS. THE SAID APPLICATION WAS DECIDED BY THE ASSESSING OFFICER ON 09-06-2017. THE ASSESSEE FILED AN APPEAL AGAINST THE DISMISSAL OF THE RECTIFICATION APPLICAT ION 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 FA CTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE ORDER OF CIT(A) IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL, SURGANA IN DISMISSING THE APPEAL IN-LIMINE BEING FI LED BEYOND THE PERIOD OF LIMITATION. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAVO UR OF ASSESSEE.' 20. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAV OUR OF ASSESSEE. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN ALL APP EALS 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 33 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 CONSTITUTIONAL VALIDITY OF PROVISIONS OF SECTION 23 4E OF THE ACT AND DO NOT DEAL WITH EFFECT OF AMENDMENT IN SECTION 200A W .E.F. 01.06.2015. THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAID VIE W OF CO-ORDINATE BENCH OF PUNE TRIBUNAL, WE HOLD THAT VIEW FAVORABLE TO THE ASSESSEE WAS TO BE ADOPTED AND THEREFORE, THE LEVY OF FEES U /S 234E FOR ANY PERIOD 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. 7. WE FIND THAT FACTUAL MATRIX TO BE IDENTICAL IN T HE PRESENT APPEALS. UNDISPUTEDLY, THE TDS RETURNS HAVE BEEN PROCESSED B EFORE 01/06/2015 WHICH IS EVIDENT FROM THE FACT THAT IMPUGNED ORDER IS DATED 14/05/2015. THEREFORE, DRAWING ANALOGY FROM THE DECISION OF HON BLE SUPREME COURT RENDERED IN CIT V/S VEGETABLE PRODUCTS LTD. (1972 88 ITR 192), WE PREFER TO FOLLOW THE DECISION OF HONBLE KARNATAKA HIGH CO URT RENDERED IN FATEHRAJ SINGHVI V/S UNION OF INDIA (73 TAXMANN.COM 252 26/0 8/2016) AND DELETE THE LATE FILING FEES U/S 234E FOR ALL THE 4 QUARTER S, AS IMPOSED BY REVENUE. 8. RESULTANTLY, ALL THE APPEALS STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JANUARY, 2020. /- SD/- SD/- /- (VIKAS AWASTHY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 10/01/2020 SR.PS:-JAISY VARGHESE 34 ITA NO.5140-43/MUM/2018 LAWMEN CONCEPTS PRIVATE LIMITED ASSESSMENT YEAR-2014-15 / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT 3. $ ( ) / THE CIT(A) 4. $ / CIT CONCERNED 5. %& ''( , ( , / DR, ITAT, MUMBAI 6. &*+, / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.