M/s. Padmawati Retail India (P) Ltd., Indore V. ACIT-CPC-TDS Ghaziabad, GHAziabad

ITA 559/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2442 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 07-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; TDS; Set aside
• Section: 201(1); 234E; 200A; 192; 73; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.492 & 493/IND/2019 M/S.OSWAL COMPUTERS & AMP CONSULTANTS PVT. LTD, INDORE PAN:AAACO 2349B A.YS.: 2013-14 (Q-3) 2013-14(Q-3) VS. ITO, TDS-I,INDORE, APPELLANT S BY SHRI PANKAJ MOGRA , CA RESPONDENT BY SHRI ASHISH PORWAL, SR. DR ITA NOS.534 TO 536/IND/2019 M/S. KESHAV INDUSTRIES PVT. LTD, INDORE PAN:AADCK5715G A.YS.: 2013-14 (Q-2) (FORM 26Q), (Q-3) (FORM 26Q), (Q- 4) (FORM 26Q), 2014-15(Q-3) VS. ITO, TDS-I,INDORE, APPELLANT S BY SHRI PANKAJ MOGRA, CA RESPONDENT BY SHRI ASHISH PORWAL, SR. DR ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 2 ITA NOS.550 TO 559/IND/2019 M/S. PADMAVATI RETAIL INDIA PVT. LTD, INDORE PAN:AAFCP3977R A.YS.: 2013-14 (Q-II) (FORM 24Q), (Q-III) (FORM 24Q ), (Q-II)(FORM 26Q), (Q-III) (FORM 26Q), 2014-15 (Q-II) (FORM 24Q), (Q-III) (FORM 24Q), (Q- IV)(FORM 24Q), Q-II (FORM 26Q),(Q-III) (FORM 26Q) VS. ACIT, CPC-TDS GHAZIABAD APPELLANT S BY MS. SHREYA JAIN , CA RESPONDENT BY SHRI ASHISH PORWAL, SR. DR DATE OF HEARING: 18.03.2020 DATE OF PRONOUNCEMENT: 19.03.2020 / O R D E R PER BENCH: THE ABOVE CAPTIONED APPEALS ARE AT THE INSTANCE OF RESPECTIVE ASSESSEES AND ARE DIRECTED AGAINST THE RESPECTIVE O RDERS OF LD. COMMISSIONER OF INCOME TAX(APPEALS), (IN SHORT CI T(A)). AS THE ISSUE RAISED IN ALL THESE APPEALS ARE SIMILAR, THES E WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 3 2. FROM PERUSAL OF THE GROUNDS WE FIND THAT ONLY ON E ISSUE NEEDS TO BE ADJUDICATED AS TO WHETHER THE REVENUE AUTHORITIE S WERE JUSTIFIED IN LEVYING THE LATE FEES U/S 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200A OF THE ACTBEFORE THE AMENDMENT WAS BROUGHT IN W.E.F. 01.06.2015 IN THE PROVISIONS OF SECTION 200A OF THE ACT. 3. BRIEF FACTS COMMON IN ALL THESE APPEALS ARE THAT THE APPELLANT WAS REQUIRED TO FILE THE STATEMENT OF TAX DEDUCTED AT SOURCE FOR THE RESPECTIVE QUARTER BUT FAILED TO DO SO WITHIN THE D UE DATE PRESCRIBED IN THE LAW FOR FILING SUCH QUARTERLY TDS RETURNS. A S PER THE PROVISIONS OF SECTION 234E OF THE ACT, FEE FOR DEFA ULT IN FURNISHING THE STATEMENT IS LEVIABLE IF THE STATEMENT OF TDS A RE NOT DELIVERED WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SE CTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C OF THE A CT. 4. THE REVENUE AUTHORITIES HAVE LEVIED THE LATE FEE S FOR DEFAULT IN FURNISHING THE STATEMENT IN THE PROCESSING OF STATE MENT OF TAX DEDUCTED AT SOURCE PREPARED U/S 200A OF THE ACT. AG AINST THE LEVY OF LATE FEE U/S 234E IN THE STATEMENT PROCESSED U/S 200A OF THE ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 4 ACT,APPEAL WAS PREFERRED BY THE ASSESSEE(S) FOR RES PECTIVE QUARTERS FOR THE RESPECTIVE ASSESSMENT YEARS BEFORE LD. CIT( A) PLEADING THAT BEFORE THE AMENDMENT WAS BROUGHT IN BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015,THE REVENUE AUTHORITIES WERE NOT HAVING THE POWER TO LEVY THE LATE FEES U/S 234E OF THE ACT IN THE ST ATEMENT PROCESSED U/S 200A OF THE ACT. 5. HOWEVER, ASSESSEE FAILED TO SUCCEED IN ALL THESE 4 APPEALS BEFORE LD. CIT(A) AND NOW ARE IN APPEALS BEFORE THE TRIBUN ALRAISING THE ABOVE REFERRED COMMON ISSUE. 6. AT THE OUTSET, LD. COUNSELS FOR RESPECTIVE ASSES SEES SUBMITTED THAT THE COMMON ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISIONS OF THE COORDINATE BENCH: (I) MENTOR INDIA LIMITED VS. DCIT (ITANO.738/JP/20 16 ORDER DATED 16.12.2016) (II) SUDERSHAN GOYAL VS. DCIT (TDS) (ITANO.442/AGR A/2017 ORDER DATED 09.04.2018) (III) STATE BANK OF INDIA, GWALIOR VS. CIT(A) (ITANO.03/AG/2018 ORDER DATED 31.05.2018.) ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 5 (IV) STATE BANK OF INDIA, GENDA CHOWK AND OTHERS VS . DCIT(TDS), (INCOME-TAX ACT, 1961, NOS. 727 & 737/IND/2017 AND OTHERS DATED 13.11.2018.) (V) M/S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018 (VI) BHUPESH KUMAR J. SANGHVI & OTHERS IN ITANO. 15/IND/ 2018 & OTHERS, ORDER DATED 22.01.2019. (VII) INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITA NO.117 OF 2019 AND OTHERS, ORDER DATED 20.02.2020. 7. LD. COUNSELS FURTHER SUBMITTED THAT IN THE ABOVE REFERRED DECISIONS OF THE TRIBUNAL, JUDGMENTS OF HON'BLE HIG H COURT OF KARNATAKA IN THE CASE OF FATEHRAJ SINGHVI VS. UOI ( 2016) 73 TAXMANN.COM 252 (KARN) (HC) FAVOURING THE ASSESSEE AND THE JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IN THE CA SE OF RAJESH KAURANI VS. UOI (2017) 83 TAXMANN.COM 137 (GUJ) HEL D AGAINST THE ASSESSEE WERE DULY CONSIDERED AND THEREAFTER FOLLOW ING THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF CIT V S. VATIKA TOWNSHIP PVT. LTD. (2014) 367 ITR 466(SC) AND THE J UDGMENT OF APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCT S LTD. (1973) 88 ITR 192(SC) HON'BLE TRIBUNAL TOOK A VIEW THAT IF TH ERE IS A CLEAVAGE ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 6 OF OPINION BETWEEN DIFFERENT COURTS ON AN ISSUE TH E ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED. ACCORDINGLY, IN THE ABOVE REFERRED DECISIONS OF THE TRIBUNAL THE VIEW FAVOURING THE AS SESSEE TAKEN BY THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF FATEHRAJ SINGHVI(SUPRA) HAS BEEN FOLLOWED HOLDING THAT AMEN DMENT BROUGHT IN W.E.F. 01.06.2015 IN SECTION 200A OF THE ACT IS PROSPECTIVE IN NATURE, THEREFORE, NO COMPUTATION FOR FEE FOR DEMAN D OR INTIMATION U/S 234E OF THE ACT COULD HAVE BEEN MADE FOR TDS DE DUCTED IN RESPECTIVE OF STATEMENTS PREPARED/PROCURED PRIOR T O 01.06.2015AND PROCESSED U/S 200A OF THE ACT. 8. LD. COUNSELS FOR THE ASSESSEES FURTHER PLACED RE LIANCE ON THE DECISIONS OF I.T.A.T.,INDORE BENCH IN THE CASE OF S TATE BANK OF INDIA, GENDA CHOWK AND OTHERS DATED 13.11.2018AND M/S. MAD HYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018, BHUPESH KUMAR J. SANGHVI & OTHERS IN ITANO.15/IND/ 2018 & OTHERS, ORDER DATED 22.01.2019 AND INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDER DATED ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 7 20.02.2020WHEREIN THE SIMILAR ISSUE HAS BEEN ADJUDI CATED AND DECIDED IN FAVOUR OF THE ASSESSEE. 9. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) FAILED TO CONTROVERT THE SUBMISSIONS MADE BY LD. COUNSELS FOR THE ASSESSEES. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US AND CAREFULLY GONE THROUGH VARIOUS JUDGMENTS REFERRED AND RELIED BY THE LD. COUNSELS FOR ABOVE C APTIONED ASSESSEES. THE COMMON ISSUE RAISED IN ALL THESE BU NCHES OF APPEALS IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIE D IN CONFIRMING THE LEVY OF LATE FEE U/S 234E OF THE ACT IN THE STATEME NT OF TAX DEDUCTED AT SOURCE PROCESSED U/S 200A OF THE ACT,EVEN WHEN T HE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 P AVED THE WAY FOR LEVYING THE FEE U/S 234E OF THE ACT IN THE STAT EMENT PROCESSED U/S 200A OF THE ACT. 11. FROM PERUSAL OF THE ABOVE ISSUE WE FIND THAT TH E SAME HAS BEEN ADJUDICATED BY US IN THE CASE OF STATE BANK OF INDI A, GENDA CHOWK AND OTHERS DATED 13.11.2018(SUPRA)AND M/S. MADHYA P RADESH ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 8 POWER TRANSMISSION LTD.& OTHERS IN ITA NOS.740/IND/ 2017 & OTHERS, ORDER DATED 20.12.2018(SUPRA), BHUPESH KU MAR J. SANGHVI & OTHERS IN ITANO.15/IND/2018 & OTHERS, OR DER DATED 22.01.2019(SUPRA) AND INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDER DATED 20.02.202 0AFTER EXAMINING SIMILAR FACTS AS WELL AS VARIOUS JUDICIAL PRONOUNCEMENTS. THE REVENUE AUTHORITIES FAILED TO CONTROVERT THE CO NTENTION OF LD. COUNSELS FOR THE ASSESSEES THAT THE COMMON ISSUE R AISED IN ALL THESE BUNCH OF 4 APPEALS ARE SQUARELY COVERED IN FA VOUR OF ASSESSEES BY THE DECISIONS IN THE CASE OF STATE BAN K OF INDIA, GENDA CHOWK AND OTHERS DATED 13.11.2018(SUPRA) AND M/S. M ADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017& OTHERS,ORDER DATED 20.12.2018(SUP RA), BHUPESH KUMAR J. SANGHVI & OTHERS IN ITANO.15/IND/ 2018 & OTHERS, ORDER DATED 22.01.2019(SUPRA)AND INDORE SCH OOL OF SOCIAL WORK & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDE R DATED 20.02.2020 AUTHORED BY US. RELEVANT PORTION OF THE DECISION GIVEN BY US IN THE CASE OF STATE BANK OF INDIA, GENDA CHO WK AND OTHERS DATED 13.11.2018 (SUPRA) READS AS FOLLOWS: ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 9 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. THE COMMON ISSUE RAISED IN ALL THES E BUNCHES OF APPEALS IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE LEVY OF LATE FEE U/S 234E OF THE ACT IN THE STATEME NT OF TAX DEDUCTED AT SOURCE PROCESSED U/S 200A OF THE ACT, EVEN WHEN T HE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 P AVED THE WAY FOR LEVYING THE FEE U/S 234E OF THE ACT IN THE STATEMEN T PROCESSED U/S 200A OF THE ACT. 10. WE FIND THAT THE ABOVE ISSUE HAS CONSISTENTLY BEING ADJUDICATED BY THE COORDINATE BENCH OF THE TRIBUNAL AND CONSISTENT VIEW HAS BEEN TAKEN THAT THE AMENDMENT B ROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 IN CLAUSE (C ),(D) & (E) OF SUB-SECTION (1) OF SECTION 200A OF THE ACT ARE PROS PECTIVE IN NATURE, THEREFORE, FEE U/S 234E CANNOT BE LEVIED IN THE STATEMENT PROCESSED U/S 200A UP TO 31.05.2015. 11. COORDINATE AGRA BENCH IN THE CASE OF SUDARSHAN GOYAL (SUPRA) ADJUDICATING VERY SAME ISSUE OBSERVED AS FO LLOWS: THE ISSUE INVOLVED IN THIS APPEAL IS AS TO WHETHER LATE FILING FEE U/S 234E OF THE IT ACT HAS RIGHTLY BEEN CHARGED IN THE INTIMATION DATED 10.11.2013 ISSUED U/S 200 A OF THE ACT WHILE PROCESSING THE TDS RETURNS/STATEMENT, THE ENABLING CLAUSE (C) HAVING BEEN INSERTED IN THE SECTION W.E.F. 01.0 6.2015. BEFORE 01.06.2015, THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U /S 234E. AS SUCH, AS PER THE ASSESSEE, IN RESPECT OF TDS STATEM ENT FILED FOR A PERIOD PRIOR TO 01.06.2015, NO LATE FEE COULD BE LEVIED IN THE INTIMATION ISSUED U/S 200 A OF THE ACT . 3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTER AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UOI ', 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) H AS HELD THAT THIS DECISION WAS I.T.A NO. 442/AGRA/2017 & S.A. NO . 01/AGRA/2018 DELIVERED AFTER CONSIDERING NUMEROUS I TAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KA URANI' (SUPRA) HOLDS THE FIELD. ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 10 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI FAT EHRAJ SINGHVI AND OTHERS VS.UOI', 73 TAXMANN.COM 252 (KER), AS AL SO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISS UE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TA KEN INTO CONSIDERATION BY THE HON'BLE GUJARAT HIGH COURT WHI LE PASSING 'RAJESH KAURANI' (SUPRA). HOWEVER, WHILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SE TTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFER ENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESS EE NEEDS TO BE FOLLOWED. IT HAS SO BEEN HELD BY THE HON'BLE SUP REME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD .', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HIGH COURT QUA THE A SSESSEE. 5. IN 'SHRI FATEHRAJ SINGHVI AND OTHERS' (SUPRA) IT HAS BEEN HELD, INTER ALIA, AS FOLLOWS: '22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN B E READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARA CTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMP UTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SE CTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR T HAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PER MIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST.' ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 11 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SH RI FATEHRAJ SINGHVI AND OTHERS' (SUPRA), 'SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BENCH OF THE TRIBU NAL, AND 'SHRI KAUR CHAND JAIN VS. DCIT, CPC (TDS) GHAZIABAD ', ORDER DATED 15.09.2016, IN ITA NO.378/ASR/2015, FOR A.Y. 2012-13, I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CA NCELLED. 12. SIMILARLY COORDINATE JAIPUR BENCH IN THE CASE O F M/S. MENTOR INDIA LTD. (SUPRA) TOOK THE SAME VIEW FAVOURING THE ASSESSEE OBSERVING AS FOLLOWS : 6. NOW THE ASSESSEE IS IN APPEAL BEFORE US. IN IT A NO. 438/JP/2016, THE ONLY EFFECTIVE GROUND IS AGAINST C ONFIRMATION OF LATE FILING FEE OF RS. 48,402/'; CHARGED BY THE A.O. U/S 234E OF THE ACT. IN THIS REGARD, THE LD. AR OF THE ASSES SEE HAS REITERATED THE ARGUMENTS AS MADE IN THE WRITTEN SUB MISSIONS AND HAS FURTHER SUBMITTED THAT THE ISSUE IS NO MORE RES-INTEGRA. HE PLACED RELIANCE ON THE DECISION OF THE ITAT, AHM ADABAD DECISION IN THE CASE OF PERFECT CROP SCIENCE PVT. L TD. VS DCIT IN ITA NO. 2957 TO 2963/AHD/2015 AND THE DECISION OF T HE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHV I & ORS. VS UNION OF INDIA & DRS. (2016) 289 CTR (KAR) 602. 7. ON THE CONTRARY, THE ID DR HAS OPPOSED THE SUBM ISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. SHE RELIED ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COU RT RENDERED IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (2015) 63 TAXMANN.COM 243 (RAJ.). 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND AL SO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. RECENT LY THE COORDINATE BENCH OF JAIPUR ITAT IN THE CASE OF M/S. SANDEEP JHANWAR ADVISORY SERVICES PVT. LTD. VS. THE TDS CPC , ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 12 GAZIABAD IN ITA NO. 722 & 723/JP/2016 FOR THE A.Y. 2013-14 / Q-3 & 4 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY O BSERVING AS UNDER:- '3.5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE CA SE LAWS RELIED UPON BY THE LD. COUNSEL. WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL THAT HE JURISDICTIONAL HIGH COURT HA S DECIDED THE VALIDITY OF SECTION 234E , BUT HAS NOT DECIDE THE ISSUE OF POWER OF AO FOR LEVY OF TAX UNDER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND O THERS (SUPRA) AS RELIED BY LD. CIT (A). WE HAVE CONSIDERE D THE RECENT DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CAS E OF SHRI FATHERAJ SINGHVI & ORS (SUPRA) WHEREIN THE ISSUE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01 .06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HON'BLE HIG H COURT AND IN PARA 24 OF THE SAID ORDER IT WAS HELD THAT 'NO D EMAND FOR FEE U/S 234E CAN BE MADE IN INTIMATION ISSUED FOR TDS D EDUCTED U/S 200A BEFORE GEETA STAR HOTELS & RESORTS PVT. LT D. VS. DCIT 01.06.2015'. WE HAVE ALSO GONE THROUGH THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP PVT. LTD . (SUPRA) WHEREIN THE HON'BLE APEX COURT HAS DISCUS SED IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETRO SPECTIVELY AND HELD THAT UNLESS CONTRARY INTENTION APPEARS, A LEGI SLATION IS PRESUMED NOT TO HAVE A RETROSPECTIVE OPERATION. RES PECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HON'BLE SUPREME CO URT AND HON'BLE KARNATAKA HIGH COURT, WE SET ASIDE THE ORDE R OF LD. CIT (A) AND DIRECT THE AO TO DROP THE DEMAND RAISED OF RS. 4,200/- U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01.06.2015. THUS GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED.' THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA) HAS DE CIDED THE ISSUE OF VIRES OF SECTION 234E OF THE ACT. THE HON' BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. V S UNION OF INDIA &ORS. (SUPRA) HAS HELD THAT THE DEMAND U/S 20 0A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U /S 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER U/ S 200A FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEARS PRIOR TO 1ST JUNE, 2015. WHEN THE INTIMATION OF THE DEMAND NOTICES U/S 200A IS ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 13 HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RE LATES TO COMPUTATION AND DEMAND OF FEE U/S 234E, THE QUESTIO N OF FURTHER SCRUTINY FOR TESTING THE CONSTITUTIONAL VAL IDITY OF SECTION 234E WOULD BE RENDERED AS AN ACADEMIC EXERCISE. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F DUNDLOD SHIKSHAN GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT SANSTHAN VS. UNION OF INDIA (SUPRA) HAS ALSO CONSID ERED THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA (2015) 229 T AXMAN 596 WHEREIN THE HON'BLE HIGH COURT HAS DECIDED THE NATURE OF DEMAND. THE HON'BLE HIGH COURT HAS HELD THAT SECTIO N 234E OF THE ACT IS NOT PUNITIVE IN NATURE BUT A FEE WHICH I S A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAS TO P ROVE DUE TO THE LATE FILING OF THE TDS STATEMENTS. HENCE FROM B OTH THE DECISIONS RELIED UPON BY THE LD. DR, THE ISSUE OF P OWER OF IMPOSING LATE FEE IS NOT DECIDED BUT THE HON'BLE KA RNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS. UN ION OF INDIA &ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAISED VIDE IMPUGNED DEMAND NOTICE U/S 200 A OF THE ACT . WE FIND FORCE IN THE CONTENTION OF THE LD. AR OF THE ASSESSEE. IF TH ERE IS CONFLICTING VIEWS TAKEN BY THE TWO HON'BLE COURTS, THEN THE VIE W, WHICH FAVOURS THE ASSESSEE SHOULD BE ADOPTED. IN THIS REG ARD, THE LD AR OF THE ASSESSEE HAS RELIED ON THE DECISION OF TH E HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHI P P. LTD. (2014) 367 ITR 466 (SC). IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHI P (SUPRA), THE DEMAND SO RAISED ARE DIRECTED TO BE DELETED. SIMILARLY IDENTICAL FINDINGS HAVE ALSO BEEN GIVEN I N ALL THE APPEALS OF OTHER ASSESSMENT YEARS.' 13. WE FURTHER FIND THAT THE COORDINATE AGRA BENCH IN THE CASE OF STATE BANK OF INDIA, GWALIOR (SUPRA) AGAIN DECID ED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION IN CASE O F SUDARSHAN GOYAL (SUPRA) OBSERVING AS FOLLOWS : 8. HEARD THE RIVAL CONTENTION AND PERUSED THE MATER IAL RELEVANT. WE FIND THAT WHILE DECIDING THE ISSUE AGAINST THE A PPELLANT ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 14 ASSESSEE THE LD. CIT(A) HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UNION OF INDIA ', 83 TAXMANN.COM 137 (GUJ.) WHEREIN IT WAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A TDS STATEM ENT OF DEDUCTION OF TAX AT SOURCE AND FOR MAKING ADJUSTMEN T. THE LD. CIT(A) HAS FURTHER HELD THAT THIS DECISION WAS DELI VERED AFTER CONSIDERING NUMEROUS ITAT AND HIGH COURT DECISIONS AND THEREFORE THIS DECISION IN 'RAJESH KAURANI' (SUPRA) , HOLDS THE FIELDS. 9. IT IS SEEN THAT PRIOR 01.06.2015, THERE WAS NO E NABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U/S 234E OF THE ACT. THE PROVISION OF SECTION 234E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROV ISION WHICH COULD NOT BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY D ELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. T HE COUNSEL FOR THE ASSESSEE HAS RIGHTLY CONTENDED THAT IN THE ABSENCE OF ENABLING PROVISIONS U/S 200 A OF THE ACT , SUCH LEVY OF LATE FEE IS NOT VALID RELYING ON GROUP OF SBI AND ORS. THE DECISIONS IN THE CASES OF ' CIT VS. VATIKA TOWNSHIP PVT. LTD . (2014) 367 ITR 466 ( SC), 'SUDARSHAN GOYAL VS DCIT (TDS)' ITA NO .442/AGR/2017 AND FATEHRAJ SINGHVI VS. UOI (2016) 2 89 CTR 0602 (KARN) (HC). THE DECISIONS RELIED ON BY TH E LD. DR ARE DISTINGUISHABLE ON FACTS, AS THE ISSUE INVOLVED IN THOSE CASES PERTAINS TO INTEREST U/S 201(1) AND 201(1A) ON THE AMOUNT OF TDS WHEREAS IN THE PRESENT CASES THE ISSUE WERE PER TAINS TO LIABILITY OF LATE FEE U/S 234E OF THE ACT FOR DELAY IN FILING TDS STATEMENT WHICH WAS INSERTED FROM 01.06.2015. 10. ON SIMILAR FACTS, WE HAVE DECIDED THE SAME ISSU E IN THE ASSESSEE'S OWN CASE ' SUDERSHAN GOYAL VS. DCIT (TDS )', IN ITA NO. 442/AGRA/2017 DTD. 09.04.2018 AUTHORED BY ONE O F US (THE LD. J.M.). THE RELEVANT PART OF THE ORDER IS REPROD UCED AS FOLLOWS: '3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTE R AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UOI ', 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 15 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) H AS HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMER OUS ITAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KAURANI' (SUPRA) HOLDS THE FIELD. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI GRO UP OF SBI AND ORS. FATEHRAJ SINGHVI AND OTHERS VS.UOI ', 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY THE HON'BLE GUJARA T HIGH COURT WHILE PASSING 'RAJESH KAURANI' (SUPRA). HOWEVER, WH ILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INT O CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS A CLEAVAGE OF O PINION BETWEEN DIFFERENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED. IT HAS SO BEEN H ELD BY THE HON'BLE SUPREME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD .', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECIS ION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HI GH COURT QUA THE ASSESSEE. 5. IN 'SHRI FATEHRAJ SINGHVI AND OTHERS' (SUPRA) IT HAS BEEN HELD, INTER ALIA, AS FOLLOWS: '22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTI ON (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND N OT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE D EMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORT ED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR T HE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. H OWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAI D THE FEE AFTER ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 16 INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESA ID VIEW WILL NOT PERMIT THE GROUP OF SBI AND ORS. DEDUCTOR TO RE OPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROT EST.' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SH RI FATEHRAJ SINGHVI AND OTHERS' (SUPRA), 'SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BENCH OF THE TRIBU NAL, AND 'SHRI KAUR CHAND JAIN VS. DCIT, CPC (TDS) GHAZIABAD ', ORDER DATED 15.09.2016, IN ITA NO.378/ASR/2015, FOR A.Y. 2012-13, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIF IED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CA NCELLED.' 11. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING 'SHRI FATEHRAJ SINGHVI AND ORS' (SUPRA), 'SIBIA HEALTHCARE PVT. LT D. VS. DCIT (SUPRA), 'SHRI KAUR CHAND JAIN VS. DCIT', (SUPRA), AND OUR OWN FINDING IN THE CASE OF 'SUDERSHAN GOYAL' (SUPRA), W E ACCEPT THE GRIEVANCE OF THE ASSESSEES AS GENUINE. ACCORDINGLY, THE ORDERS OF THE CIT(A) ARE REVERSED AND THE FEE SO LEVIED UN DER SECTION 234E OF THE ACT IS CANCELLED. 14. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISION OF THE COORDINATE BENCH CONSISTENTLY HOLDI NG THAT IN THE INTIMATION PREPARED U/S 200A OF THE ACT UP TO 31 ST MAY 2015, THE LATE FILING FEE U/S 234E OF ACT CANNOT BE CHARG ED WHILE PROCESSING THE TDS RETURN/STATEMENT BECAUSE ENABLIN G CLAUSE (C) OF SUB-SECTION (1) OF SECTION 200A HAVE BEEN IN SERTED W.E.F. 01.06.2015 AND BEFORE THIS AMENDMENT W.E.F 01.06.20 15 THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A OF TH E ACT FOR RAISING DEMAND IN RESPECT OF LEVY OF FEES U/S 234E OF THE ACT. 15. WE ARE OF THE CONSIDERED OPINION THAT IN ALL TH ESE 56 APPEALS THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF LATE FEE U/S 234E OF THE ACT. WE, ACCORDINGLY, SET ASIDE THE FIN DINGS OF LD. CIT(A) IN ALL THESE APPEALS AND ALLOW THE COMMON IS SUE IN FAVOUR OF THE ASSESSEE. 12. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AS WELL AS FOLLOWING THE DECISIONS GIVEN BY US IN T HE CASE OF STATE ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 17 BANK OF INDIA, GENDA CHOWK AND OTHERS DATED 13.11.2 018 (SUPRA) AND M/S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATE D 20.12.2018(SUPRA), BHUPESH KUMAR J. SANGHVI & OTHER S IN ITANO.15/IND/2018 & OTHERS, ORDER DATED 22.01.2019( SUPRA) AND INDORE SCHOOL OF SOCIAL WORK & OTHERS IN ITANO.117 OF 2019 AND OTHERS, ORDER DATED 20.02.2020 ARE OF THE OPINION T HAT IN THE GIVEN SET OF FACTS OF THE INSTANT APPEALS WHEREIN FEE U/S 234E OF THE ACT WAS LEVIED IN THE STATEMENTS PROCESSED U/S 200A OF THE ACT BEFORE 01.06.2015 I.E. BEFORE THE AMENDMENT BROUGHT INTO E FFECT FROM 01.06.2015 IN SECTION 200A OF THE ACT THEREBY ENABL ING THE REVENUE AUTHORITIES TO RAISE DEMAND IN RESPECT OF LEVY OF F EES U/S 234E OF THE ACT. LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF LATE FEES U/S 234E OF THE ACT BY THE ASSESSING OFFICER. ACCORDINGLYFIN DINGS OF LD. CIT(A) IN ALL THESE APPEALS ARE REVERSED AND REVENUE IS DI RECTED TO DELETE THE LEVY OF FEES U/S 234E OF THE ACT IN ALL THESE 4 CASES. THUS, COMMON ISSUE RAISED IN ALL THESE APPEALS ARE DECIDE D IN FAVOUR OF THE ASSESSEES. ITANOS.492 TO 493, 534 TO 536, 550 TO 558/IND/2019 OSWAL COMPUTER & AMP CONSULTANTS PVT. LTD & ORS 18 13. IN THE RESULT, ALL THESE APPEALS AT THE INSTANC E OF ASSESSEE(S)ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19.03 .2020. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 19/03/2020 /DEV COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE