M/S GOLD CREATIONS, KOTA V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL PROCESSING CELL-TDS, GHAZIABAD

ITA 619/JPR/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9870 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 07-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Keywords: Principle of natural justice; Retrospective amendment

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 619/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15. M/S. GOLD CREATIONS, D-16, NEW COLONY, GUMANPURA, KOTA. CUKE VS. THE DCIT CENTRAL PROCESSING CELL-TDS GHAZIABAD. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAJFG 9873 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MUZAFFAR IQBAL (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03.12.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/12/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 19 TH FEBRUARY, 2018 OF LD. CIT (A), KOTA FOR THE ASSESSMENT YEAR 2 014-15. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. THAT THE ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER PASSED BY THE LEARNED LOWER AUTHORITIES IS AG AINST THE LAW AND FACTS OF THE CASE AND DESERVES TO BE QUASHED. 2. THAT THE LEARNED CIT (APPEALS) ERRED IN PASSING EX-PARTE ORDER WITHOUT GIVING ANY OPPORTUNITY OF HEARING TO THE APPELLANT WHICH IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE. 3. THAT THE LD. ASSESSING OFFICER HAS ERRED IN CHAR GING FEES U/S 234E VIDE ORDER U/S 200A IN THE AMOUNT OF RS. 28,000/- FOR LA TE FILING OF TDS RETURN STATEMENT AND CHARGING INTEREST OF RS. 321/- THEREON FOR LATE PAYMENT BY BRUSHING ASIDE THE EXPLANATION OF THE AP PELLANT AND THE LEARNED CIT (APPEALS), KOTA ALSO ERRED IN CONFIRMIN G THE SAME WITHOUT THERE BEING ANY BASIS. 2 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY OR AMEND ANY GROUND ON OR BEFORE THE DATE OF HEARING. 2. SINCE THERE WAS A DELAY IN FILING THE QUARTERLY TDS STATEMENT IN FORM 26Q AS PER PROVISIONS OF SECTION 200(3) OF THE IT ACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE AO LEVIED THE FEE FOR DEFAULT IN FURNISHING THE STATEMENT WHILE PROCESSING THE STATEMENT UNDER SECTION 200A OF RS. 28,320/- AS PROVIDED UNDER SECTION 234E OF THE IT ACT. THE ASSESSEE CHALLENGE D THE ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT SINCE SECTION 234E HAS BEEN INSERTED BY FINANCE ACT 2012 WITH EFFECT F ROM 1 ST JULY, 2012, THEREFORE, THE LEVY OF FEE FOR DELAY IN FURNISHING THE TDS STATEME NT CAN BE LEVIED ONLY FROM 1 ST JULY, 2012 ONWARDS. FURTHER, HE HAS POINTED OUT THAT PRI OR TO THE AMENDMENT WITH EFFECT FROM 01.06.2015, THE AO DID NOT HAVE POWER TO CHARG E FEE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEMENT. IN SUPPORT OF HIS CO NTENTION, HE HAS RELIED UPON THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL DATED 29 TH OCTOBER, 2018 IN CASE OF GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT IN I TA NO. 14/JP/2017. 4. ON THE OTHER HAND, THE LD. D/R HAS RELIED UPON T HE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT WHEN THE PROVISIONS OF SEC TION 234E WAS INTRODUCED WITH EFFECT FROM 01.07.2012, THEREFORE, ANY DELAY IN SUB MITTING QUARTERLY STATEMENT WILL ATTRACT THE SAID PROVISION. ACCORDINGLY, THE LD. D /R HAS SUBMITTED THAT THE ORDER OF LEVYING THE FEE UNDER SECTION 234E IS VALID AND AS PER THE PROVISIONS OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THOUGH THE PROVISIONS OF SECTION 234E WAS INTRODUCED WITH EFFECT FROM 3 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. 01.07.2012, HOWEVER, THE AO WAS NOT GIVEN THE POWER TO LEVY THE FEE WHILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT UNTIL THE AMENDMENT WAS BROUGHT IN THE SAID PROVISION WITH EFFECT FROM 01.06.2015. IN THE CASE IN HAND, THE PRESENT ORDER WAS PASSED ON 16 TH FEBRUARY, 2014 AND ON THAT DAY THERE WAS NO ENABLING PROVISION EMPOWERING THE AO TO LEVY THE FE E WHILE PROCESSING THE TDS STATEMENT UNDER SECTION 200A OF THE ACT. AT THE OU TSET, WE NOTE THAT THIS BENCH IN THE CASE OF GEETA STAR HOTELS & RESORTS PVT. LTD. V S. DCIT (SUPRA) WHILE CONSIDERING AN IDENTICAL ISSUE HAS HELD IN PARA 6 TO 8 AS UNDER :- 6. NOW COMING ON MERITS OF THE CASE, BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO HAS IMPOSED LATE FILING FEES OF RS. 14,400/- U/S 234E WHILE PROCESSING THE TDS RETURN (26Q) U/S 200A OF T HE ACT FOR THE SECOND QUARTER OF THE F.Y 2012-13 RELEVANT TO IMPUG NED ASSESSMENT YEAR AND THE INTIMATION U/S 200A OF THE ACT WAS PAS SED ON 15 TH DECEMBER, 2013. BEFORE THE LD. CIT(A), THE ASSESSE E HAS CONTENDED THAT PRIOR TO 01.06.2015, THERE WAS NO ENABLING PRO VISIONS IN SECTION 200A OF THE ACT FOR MAKING ADJUSTMENT IN RESPECT OF STATEMENT FILED BY THE ASSESSEE WITH REGARD TO TDS BY LEVYING FEE U/S 234E OF THE ACT. THE LD. CIT(A) HOWEVER, REFERRING TO THE DECISION O F THE HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S DUNDLOD SHIKSHA N SANSTHAN V. UNION OF INDIA [2015] 63 TAXMANN.COM 243 AND OTHERS VIDE ORDER DATED 28.07.2015 HAS HELD THAT THERE IS NO VALID RE ASON OR JUSTIFICATION TO INTERFERE WITH THE COMPENSATORY FEE IMPOSED IN L ATE FILING OF THE TDS RETURN. ACCORDINGLY, THE DEMAND RAISED BY THE AO FO R LATE FILING FEE U/S 234E WAS CONFIRMED. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 7. DURING THE COURSE OF HEARING, THE LD. AR SUBMIT TED THAT PROVISIONS OF SECTION 200A OF THE IT ACT, 1961, INS ERTED W.E.F. 1.4.2010 ARE SPECIAL PROVISIONS FOR PROCESSING OF THE TDS ST ATEMENTS. THE 4 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. SECTION SETS OUT SOME EXHAUSTIVE ADJUSTMENTS, WHICH CAN BE MADE WHILE PROCESSING THE STATEMENT. 7.1 SECTION 234E HAS BEEN INSERTED BY FINANCE ACT, 2012 W.E.F. 1 ST JULY, 2012 WHICH PROVIDES FOR LEVY OF FEE FOR DELAY IN FURNISHING TDS STATEMENT. HENCE, FROM 1 ST JULY, 2012 ONWARDS, A FEE CAN BE LEVIED FOR THE DELAY IN SUBMISSION OF TDS RETURN. 7.2 SECTION 200A WAS AMENDED BY FINANCE ACT 2015 AN D W.E.F 1 ST JUNE, 2015 CLAUSE (C) TO SUBSECTION (1) HAS BEEN SU BSTITUTED. THE UPDATED CLAUSE IS AS UNDER: SECTION 200A - PROCESSING OF STATEMENTS OF TAX DED UCTED AT SOURCE. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE [O R 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 BE PROCESSED IN THE FOLLO WING MANNER, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANC E WITH THE PROVISIONS OF SECTION 234E; 7.3 HENCE, FOR THE ABOVE IT IS CLEAR THAT ALTHOUGH PRIOR TO 1.6.2015, FEES U/S 234E CAN BE LEVIED, YET THE SAME CANNOT BE LEVIED WHILE PROCESSING TDS STATEMENT U/S 200A. 7.4 IN THE PRESENT CASE, THE ASSESSEE FILED ITS TD S RETURN FOR Q2 ON 26.12.2012. THE SAME WAS PROCESSED U/S 200A VIDE OR DER DATED 15.12.2013. HOWEVER, LD. AO ERRED IN LEVYING FEES U /S 234E WHILE PROCESSING THE TDS STATEMENT FOR A PERIOD PRIOR TO 1.6.2015. 7.5 IT WAS SUBMITTED THAT AS PER THE WELL ESTABLIS HED PRINCIPLES OF INTERPRETATION OF STATUTE, UNLESS IT IS EXPRESSLY P ROVIDED OR IMPLIEDLY 5 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. DEMONSTRATED, ANY PROVISION OF STATUTE IS TO BE REA D AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UN DER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CL AUSE (C) OF SUB- SECTION (1) OF SECTION 200A CAN BE READ AS HAVING P ROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFECT. 7.6 THUS THE ACTION OF LD. AO IS BAD IN LAW SINCE THE IMPUGNED INTIMATION U/S 200A WAS PROCESSED IN THE PERIOD PRI OR TO 1.6.2015. HENCE, THE ACTION OF LD. AO IS OUTSIDE THE SCOPE AN D PURVIEW OF THE SECTION 200A. 7.7 FURTHER, IT IS SUBMITTED THAT LD. CIT(A) HAS M ISPLACED HIS RELIANCE ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN V. UNION OF INDIA [2015] 63 TAXMANN.COM 243. THE HONBLE COURT HAS PLACED RELIANCE ON THE D ECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALI A V. UNION OF INDIA 373 ITR 268 AND HAS ADJUDICATED THE ISSUE REL ATING TO WHETHER THE FEES CHARGED IS LEGAL OR ILLEGAL AND HAS UPHELD THE CONSTITUTIONAL VALIDITY OF LEVY OF FESS U/S 234E. THE COURT HAS NO T TOUCHED UPON THE MECHANISM TO LEVY THE FEES U/S 234E IN THE TDS STAT EMENT PROCESSED U/S 200A. THUS, CIT(A) HAS ERRED IN INTERPRETING TH E DECISION OF HONBLE RAJASTHAN HIGH COURT. 7.8 IT WAS FURTHER SUBMITTED THAT THE ASSESSEES C ASE IS SQUARELY COVERED BY THE UNDERNOTED JUDGMENTS OF HONBLE ITAT JAIPUR, WHICH HAVE ALSO CONSIDERED THE DECISION OF HONBLE RAJAST HAN HIGH COURT IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN (SUPRA) AND HAVE DECIDED IN THE FAVOUR OF THE ASSESSEE. RELEVANT EXTRACTS HAS B EEN SET OUT HERE FOR YOUR CONVENIENCE. M/S MENTOR INDIA LIMITED VS. DCIT - ITA NO.738/JP/2 016 ..WE FIND THAT THE HONBLE JURISDICTIONAL HIGH CO URT IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA ) HAS ITA 738/JP/2016 & 6 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. ORS. ITAS_ M/S MENTOR INDIA LTD. VS DCIT WITH OTHER 10 CASES 7 ALSO CONSIDERED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE 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 SECTION 234E OF THE ACT IS NOT PUNITI VE IN NATURE BUT A FEE WHICH IS A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE D EPARTMENT HAS TO PROVE DUE TO THE LATE FILING OF THE TDS STATEMENTS. HENCE FRO M BOTH THE DECISIONS RELIED UPON BY THE LD. DR, THE ISSUE OF POWER OF IMPOSING LATE FEE IS NOT DECIDED BUT THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FAT HERAJ SINGHVI & ORS. VS. UNION OF INDIA & ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAISED VIDE IMPUGNED DEMAND NOTICE U/S 200A OF THE ACT. WE FIND FORCE IN THE CONTENTION OF THE LD. AR OF THE ASSESSEE. IF THERE IS CONFLICTING VIEWS T AKEN BY THE TWO HON'BLE COURTS, THEN THE VIEW, WHICH FAVOURS THE ASSESSEE S HOULD BE ADOPTED. IN THIS REGARD, THE LD AR OF THE ASSESSEE HAS RELIED ON THE DECISION OF THE 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 SU PREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP (SUPRA), THE DEMAND SO RAIS ED ARE DIRECTED TO BE DELETED M/S. SANDEEP JHANWAR ADVISORY SERVICES PVT. LTD. VS . THE TDS CPC (ITA NO. 722 & 723/JP/2016) ..WE FIND MERIT INTO THE CONTENTION OF LD. COUNSE L THAT THE JURISDICTIONAL HIGH COURT HAS 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. D UNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) AS RELIED BY LD. CIT (A ). WE HAVE CONSIDERED THE RECENT DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF SHRI FATHERAJ SINGHVI & ORS (SUPRA) WHE REIN THE ISSUE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 2 00A BEFORE 7 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. 01.06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HONBLE HIGH COURT AND IN PARA 24 OF THE SAID ORDER IT WAS HELD THAT NO DEMAND FOR FEE U/S 234E CAN BE MADE IN INTIMATION ISSUED F OR TDS DEDUCTED U/S 200A BEFORE 01.06.2015. WE HAVE ALSO GONE THROUGH THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. VAT IKA TOWNSHIP PVT. LTD. (SUPRA) WHEREIN THE HONBLE APEX COURT HAS DISCUSSE D IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETROSPECTIVELY AND HELD TH AT UNLESS CONTRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO HAVE A RE TROSPECTIVE OPERATION. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HONB LE SUPREME COURT AND HONBLE 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 7.9 FURTHER, OUR ATTENTION WAS DRAWN TO THE DECISI ON OF COORDINATE BENCH IN THE CASE OF MAHARASHTRA CRICKET ASSOCIATIO N VS. DCIT [2016] 74 TAXMANN.COM 6 (PUNE - TRIB.) WHO ON PLACING RELI ANCE ON THE DECISION OF HON'BLE KARNATAKA HIGH COURT IN WRIT AP PEAL NOS.2663- 2674/2015(T-IT) IN FATHERAJ SINGHVI V. UNION OF IND IA [2016] 73 TAXMANN.COM 252 HAS HELD THAT PRIOR TO 1-6-2015, A O DID NOT HAVE POWER TO CHARGE FEES UNDER SECTION 234E WHILE PROCE SSING TDS RETURNS. FURTHER THE HONBLE COURT HAS HELD THAT HONBLE BOM BAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA (SUPRA), HAS NOT UP HELD THE APPLICABILITY OF SECTION 234E OF THE ACT BY THE ASS ESSING OFFICER WHILE PROCESSING TDS STATEMENT FILED BY THE DEDUCTOR PRIO R TO 01.06.2015. RELEVANT EXTRACT HAS BEEN SET OUT HERE FOR THE SAKE OF YOUR CONVENIENCE: ..30. THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA'S CASE (SUPRA) HAS UPHELD THE CONSTITUTIONAL VALIDITY OF S AID SECTION INTRODUCED BY THE FINANCE ACT, 2015 W.E.F. 01.06.20 15 BUT WAS NOT 8 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. ABREAST OF THE APPLICABILITY OF THE SAID SECTION 23 4E OF THE ACT BY THE ASSESSING OFFICER WHILE PROCESSING TDS STATEMENT FI LED BY THE DEDUCTOR PRIOR TO 01.06.2015. IN SUCH SCENARIO, WE FIND NO MERIT IN THE PLEA OF LEARNED CIT-DR THAT THE HON'BLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA'S CASE (SUPRA) HAS LAID DOWN TH E PROPOSITION THAT FEES UNDER SECTION 234E OF THE ACT IS CHARGEAB LE IN THE CASE OF PRESENT SET OF APPEALS, WHERE THE ASSESSING OFFICER HAD ISSUED THE INTIMATION UNDER SECTION 200A OF THE ACT PRIOR TO 0 1.06.2015. .. 33. WE FURTHER FIND THAT IN RECENT JUDGMENT DATED 26.08.2016, THE HON'BLE KARNATAKA HIGH COURT IN WRIT APPEAL NOS.266 3- 2674/2015(T-IT) IN FATHERAJ SINGHVI V. UNION OF IND IA [2016] 73 TAXMANN.COM 252 HAS QUASHED THE INTIMATIO N ISSUED UNDER SECTION 200A OF THE ACT LEVYING THE FE ES FOR DELAYED FILING THE TDS STATEMENTS UNDER SECTION 234 E OF THE ACT. THE HON'BLE HIGH COURT NOTES THAT THE FINANCE ACT, 2015 HAD MADE AMENDMENTS TO SECTION 200A OF THE ACT ENAB LING THE ASSESSING OFFICER TO MAKE ADJUSTMENTS WHILE LEV YING FEES UNDER SECTION 234E OF THE ACT WAS APPLICABLE W .E.F. 01.06.2015 AND HAS HELD THAT IT HAS PROSPECTIVE EFF ECT. ACCORDINGLY, THE HON'BLE HIGH COURT HELD THAT 'INTI MATION RAISING DEMAND PRIOR TO 01.06.2015 UNDER SECTION 20 0A OF THE ACT LEVYING SECTION 234E OF THE ACT LATE FEES I S NOT VALID'. HOWEVER, THE HON'BLE HIGH COURT KEPT OPEN THE ISSUE ON CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. WE HAVE ALREADY REFERRED TO THE DECISION OF HON'BLE BOMBAY HIGH COU RT IN RASHMIKANT KUNDALIA'S CASE (SUPRA) IN THIS REGARD, WHEREIN THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT HAS BEEN UPHELD . 34. ACCORDINGLY, WE HOLD THAT THE AMENDMENT TO SEC TION 200A(1) OF THE ACT IS PROCEDURAL IN NATURE AND IN VIEW THEREOF , THE ASSESSING OFFICER WHILE PROCESSING THE TDS STATEMENTS / RETUR NS IN THE PRESENT SET OF APPEALS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT 9 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, THE INTIMATION ISSUED BY THE ASSESSING OFFICER UNDER SE CTION 200A OF THE ACT IN ALL THESE APPEALS DOES NOT STAND AND THE DEM AND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE INTIMATION ISSUED BY T HE ASSESSING OFFICER WAS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT AND SUCH ADJUSTMENT COULD NOT STAND IN THE EYE OF LAW 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, THE UNDIS PUTED FACTS ARE THAT THE ASSESSEE FILED ITS TDS RETURN (FORM 26Q) FOR TH E FOURTH QUARTER OF FINANCIAL YEAR 2012-13 ON 26.12.2012 AND THE SAME W AS PROCESSED AND INTIMATION UNDER SECTION 200A WAS ISSUED VIDE ORDER DATED 15.12.2013 MUCH PRIOR TO THE AMENDMENT TO SECTION 200A OF THE ACT W.E.F. 1.6.2015 EMPOWERING THE ASSESSING OFFICER LEVYING T HE FEES UNDER SECTION 234E OF THE ACT. IT IS THEREFORE NOT A CAS E OF CONTINUING DEFAULT WHERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE TDS STATEMENT EVEN AFTER 1.6.2015 AND THEREAFTER, THE DEMAND FOR PAYMENT OF FEES UNDER SECTION 234E HAS BEEN RAISED BY THE ASSESSING OFFICER. IN CASE OF FATHERAJ SINGHVI (SUPRA), THE HONBLE KARNATAKA HIGH COURT HAS HELD THAT THE PROVISIONS OF AMENDED SECTION 200A ARE PRO SPECTIVE IN NATURE. FURTHER, THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND OTHERS (SUPRA) A S RELIED BY LD. CIT (A) IS IN THE CONTEXT OF VALIDITY OF SECTION 23 4E, BUT NOT IN THE CONTEXT OF POWER OF AO FOR LEVY OF FEE UNDER SECTIO N 234E PRIOR TO 1.6.2015. IN VIEW OF THE ABOVE, THE ASSESSING OFFIC ER WHILE PROCESSING THE TDS STATEMENTS FOR THE PERIOD PRIOR TO 01.06.20 15, WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, THE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SEC TION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. 10 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA. FOLLOWING THE ORDER OF THIS TRIBUNAL, WE HOLD THAT THE AMENDMENT IN SECTION 200A IS PROSPECTIVE IN NATURE AND, THEREFORE, THE AO WAS NO T EMPOWERED TO CHARGE FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. UNDISPUTEDLY, THE FEE WAS LEV IED BY THE AO FOR THE PERIOD PRIOR TO 01.06.2015 FOR WHICH THE AO HAS NO JURISDICTION. ACCORDINGLY THE ORDER PASSED BY THE AO LEVYING THE FEE UNDER SECTION 234E OF THE AC T IS NOT VALID AND CONSEQUENTLY THE SAME IS DELETED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 04/12/201 8. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 04/12/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S. GOLD CREATIONS, KOTA. 2. THE RESPONDENT THE DCIT, CENTRALIZED PROCESSIN G CELL-TDS, GHAZIABAD. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 619/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 11 ITA NO. 619/JP/2018 M/S. GOLD CREATIONS, KOTA.