Jeevandhara Hospital (P) Ltd., Indore V. ACIT-CPC-TDS, Ghaziabad , INDORE

ITA 640/Ind/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9810 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-02-2021
• Assessment Year: misc
• Appeal Filed On: 28-05-2019
• 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 HONBLE MANISH BORAD, ACCOUNTANT MEMBER AND HONBLE MADHUMITA ROY, JUDICIAL MEMBER VIRTUAL HEARING ITA NOS.640 TO 642/IND/2019 JEEVANDHARA HOSPITAL PVT. LTD., INDORE PAN:AABCJ2121P A.Y.: 2014-15(26, Q-1, Q-2 & Q-3) APPELLANT S BY SHRI SUBHASH CHAND JAIN AR RESPONDENT BY SHRI HARSHIT BARI, SR. DR DATE OF HEARING: 25.06.2021 DATE OF PRONOUNCEMENT: 25.06.2021 / O R D E R PER MANISH BORAD, A.M: THE ABOVE CAPTIONED APPEALS ARE AT THE INSTANCE OF ASSESSEE AND ARE DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-I, (IN SHORT C IT(A)) INDORE DATED 30.04.2019. AS THE ISSUE RAISED IN THESE APPEALS IS SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOS ED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BRE VITY. ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 2 2. FROM PERUSAL OF THE GROUNDS WE FIND THAT ONLY ONE ISSUE NEEDS TO BE ADJUDICATED AS TO WHETHER THE REVENUE AUTHO RITIES 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 ACT BEFORE 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 THESE APPEALS ARE THAT THE APPEL LANT WAS REQUIRED TO FILE THE STATEMENT OF TAX DEDUCTED AT S OURCE FOR THE RESPECTIVE QUARTER BUT FAILED TO DO SO WITHIN THE DUE DATE PRESCRIBED IN THE LAW FOR FILING SUCH QUARTERLY TDS R ETURNS. AS PER THE PROVISIONS OF SECTION 234E OF THE ACT, FEE FOR DEFAULT IN FURNISHING THE STATEMENT IS LEVIABLE IF THE STATEMENT OF TDS ARE NOT DELIVERED WITHIN THE TIME PRESCRIBED IN SUB-SEC TION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SE CTION 206C OF THE ACT. 4. THE REVENUE AUTHORITIES HAVE LEVIED THE LATE FEES F OR DEFAULT IN FURNISHING THE STATEMENT IN THE PROCESSING OF STATEME NT OF TAX DEDUCTED AT SOURCE PREPARED U/S 200A OF THE ACT. AGAIN ST THE LEVY OF LATE FEE U/S 234E IN THE STATEMENT PROCESSED U/S 200A OF THE ACT, APPEAL WAS PREFERRED BY THE ASSESSEE FOR RE SPECTIVE QUARTERS FOR THE RESPECTIVE ASSESSMENT YEARS BEFORE LD. CIT(A) PLEADING THAT BEFORE THE AMENDMENT WAS BROUGHT IN BY TH E ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 3 FINANCE ACT, 2015 W.E.F. 01.06.2015, THE REVENUE AUTH ORITIES WERE NOT HAVING THE POWER TO LEVY THE LATE FEES U/S 2 34E OF THE ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 5. HOWEVER, ASSESSEE FAILED TO SUCCEED BEFORE LD. CIT (A) AND NOW IS IN APPEALS BEFORE THE TRIBUNAL RAISING THE ABOVE REFERRED COMMON ISSUE. 6. AT THE OUTSET, LD. COUNSEL FOR ASSESSEE SUBMITTED THAT THE COMMON ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE BY THE DECISIONS OF THE COORDINATE BENCH IN THE CASE OF STATE BANK OF INDIA, GENDA CHOWK AND OTHERS DATED 13.11.2018 AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018 A ND BHUPESH KUMAR J. SANGHVI & OTHERS IN ITANO.15/IND/20 18 & OTHERS, ORDER DATED 22.01.2019 WHEREIN THE SIMILAR IS SUE HAS BEEN ADJUDICATED AND DECIDED IN FAVOUR OF THE ASSESSEE. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) FAILE D TO CONTROVERT THE SUBMISSIONS MADE BY LD. COUNSEL FOR T HE ASSESSEE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US AND CAREFULLY GONE THROUGH VARIOUS JUD GMENTS REFERRED AND RELIED BY THE LD. COUNSEL FOR ABOVE CAPTI ONED ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 4 ASSESSEE. THE COMMON ISSUE RAISED IN THESE APPEALS IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING T HE LEVY OF LATE FEE U/S 234E OF THE ACT IN THE STATEMENT OF TAX DEDU CTED AT SOURCE PROCESSED U/S 200A OF THE ACT, EVEN WHEN THE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 WAS EFFECTIV E FROM 01.06.2015 WHICH PAVED THE WAY FOR LEVYING THE FEE U/S 234E OF THE ACT IN THE STATEMENT PROCESSED U/S 200A OF THE A CT. 9. FROM PERUSAL OF THE ABOVE ISSUE WE FIND THAT THE SA ME HAS BEEN ADJUDICATED BY US IN THE CASE OF STATE BANK OF IND IA, GENDA CHOWK AND OTHERS DATED 13.11.2018(SUPRA) AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018(S UPRA) AND BHUPESH KUMAR J. SANGHVI & OTHERS IN ITANO.15/IND/2018 & OTHERS, ORDER DATED 22.01.2019(S UPRA) AFTER EXAMINING SIMILAR FACTS AS WELL AS VARIOUS JUDICIAL PRONOUNCEMENTS. THE REVENUE AUTHORITIES FAILED TO CON TROVERT THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE THAT THE COMMON ISSUE RAISED IN THESE 3 APPEALS ARE SQUARELY COVERED IN F AVOUR OF ASSESSEE BY THE DECISIONS IN THE CASE OF STATE BANK OF INDIA, GENDA CHOWK AND OTHERS DATED 13.11.2018(SUPRA) AND M /S. MADHYA PRADESH POWER TRANSMISSION LTD. & OTHERS IN ITA NOS.740/IND/2017 & OTHERS, ORDER DATED 20.12.2018(S UPRA) ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 5 AND BHUPESH KUMAR J. SANGHVI & OTHERS IN ITANO.15/IND/2018 & OTHERS, ORDER DATED 22.01.2019(S UPRA) AUTHORED BY US. RELEVANT PORTION OF THE DECISION GIVE N BY US IN THE CASE OF STATE BANK OF INDIA, GENDA CHOWK AND OTHERS DATED 13.11.2018 (SUPRA) READS AS FOLLOWS: 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE COMMON ISSUE RAISED IN ALL THESE BUNC HES OF APPEALS IS THAT WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING T HE LEVY OF LATE FEE U/S 234E OF THE ACT IN THE STATEMENT OF TAX DEDUCTED AT SO URCE PROCESSED U/S 200A OF THE ACT, EVEN WHEN THE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 PAVED THE WAY FOR LEVYING TH E FEE U/S 234E OF THE ACT IN THE STATEMENT 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 CONSIST ENT VIEW HAS BEEN TAKEN THAT THE AMENDMENT BROUGHT IN THE FINANC E ACT 2015 W.E.F. 01.06.2015 IN CLAUSE (C),(D) & (E) OF SUB-SE CTION (1) OF SECTION 200A OF THE ACT ARE PROSPECTIVE IN NATURE, THEREFOR E, FEE U/S 234E CANNOT BE LEVIED IN THE STATEMENT PROCESSED U/S 200 A UP TO 31.05.2015. 11. COORDINATE AGRA BENCH IN THE CASE OF SUDARSHAN GOYAL (SUPRA) ADJUDICATING VERY SAME ISSUE OBSERVED AS FOLLOWS: 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 STATEMENT FILED FOR A PERIOD PRIOR TO 01.06.2015, NO LATE FEE COULD BE LEVIED IN THE INTI MATION 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 ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 6 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 OF TAX AT SOURC E AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) HAS HELD THAT THIS DECI SION WAS I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 DELIVERED AFT ER CONSIDERING NUMEROUS ITAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KAURANI' (SUPRA) HOLDS THE FIEL D. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI FATEHRAJ SINGHVI AND OTHERS VS.UOI', 73 TAXMANN.COM 252 (KER), AS ALSO A DMITTED 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 DECIS ION AND OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY T HE HON'BLE GUJARAT HIGH COURT WHILE PASSING 'RAJESH KAURANI' ( SUPRA). HOWEVER, WHILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TA KE INTO CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS A CLEAVAGE OF O PINION BETWEEN DIFFERENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOU R OF THE ASSESSEE NEEDS TO BE FOLLOWED. IT HAS SO BEEN HELD BY THE HO N'BLE SUPREME 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 PROVID ED OR IMPLIEDLY 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) 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 234 E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 2 00A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSM ENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR THAT, IF ANY DE DUCTOR HAS ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 7 ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDE R SECTION 200A, THE AFORESAID VIEW WILL NOT PERMIT THE DEDUCTOR TO REOP EN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST.' 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 TRIBUNAL, AND 'SHRI KA UR 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/AG RA/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 CANCELLED. 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 ASSESSEE HAS REITERA TED THE ARGUMENTS AS MADE IN THE WRITTEN SUBMISSIONS AND HAS FURTHER SUBMITTED THAT THE ISSUE IS NO MORE RES-INTEGRA. HE PLACED RELIANC E ON THE DECISION OF THE ITAT, AHMADABAD DECISION IN THE CASE OF PERFECT CROPSCIENCE PVT. LTD. VS DCIT IN ITA NO. 2957 TO 2963/AHD/2015 AND T HE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FAT HERAJ SINGHVI & 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 COURT R ENDERED IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (20 15) 63 TAXMANN.COM 243 (RAJ.). 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. RECENTLY THE COORDINATE B ENCH OF JAIPUR ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 8 ITAT IN THE CASE OF M/S. SANDEEP JHANWAR ADVISORY S ERVICES PVT. LTD. VS. THE TDS CPC, GAZIABAD IN ITA NO. 722 & 723 /JP/2016 FOR THE A.Y. 2013-14 / Q-3 & 4 HAS ALLOWED THE APPEAL O F THE ASSESSEE BY OBSERVING AS UNDER:- '3.5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. WE HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON BY THE LD. COUNSEL. WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL TH AT HE JURISDICTIONAL HIGH COURT HAS DECIDED THE VALIDITY OF SECTION 234E , BUT HAS NOT DECIDE THE ISSUE OF POWER OF AO FOR LEVY OF TAX UND ER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE OF M/S. DUNDLOD S HIKSHAN SANSTHAN AND OTHERS (SUPRA) AS RELIED BY LD. CIT (A ). WE HAVE CONSIDERED THE RECENT DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CASE OF SHRI FATHERAJ SINGHVI & ORS (SUPRA) WHEREIN THE ISSUE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 200A B EFORE 01.06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HON'BLE 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 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 DISCUSSE D IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETROSPECTIVELY AND HELD THAT UNLESS CONTRARY INTENTION APPEARS, A LEGISLATION IS PRESUM ED NOT TO HAVE A RETROSPECTIVE OPERATION. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HON'BLE SUPREME COURT AND HON'BLE KARNATAKA HIGH CO URT, WE SET ASIDE THE ORDER OF LD. CIT (A) AND DIRECT THE AO TO DROP THE DEMAND RAISED OF RS. 4,200/- U/S 234E ON STATEMENTS PROCES SED U/S 200A BEFORE 01.06.2015. THUS GROUNDS RAISED BY THE ASSES SEE 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 KA RNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS UNION OF INDIA & ORS. (SUPRA) HAS HELD THAT THE DEMAND U/S 200A FOR COMPUTATION A ND INTIMATION FOR THE PAYMENT OF FEE U/S 234E COULD NOT BE MADE I N PURPORTED EXERCISE OF POWER U/S 200A FOR THE PERIOD OF THE RE SPECTIVE ASSESSMENT YEARS PRIOR TO 1ST JUNE, 2015. WHEN THE INTIMATION OF THE DEMAND NOTICES U/S 200A IS HELD TO BE WITHOUT AUTHO RITY OF LAW SO ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 9 FAR AS IT RELATES TO COMPUTATION AND DEMAND OF FEE U/S 234E, THE QUESTION OF FURTHER SCRUTINY FOR TESTING THE CONSTI TUTIONAL VALIDITY OF SECTION 234E WOULD BE RENDERED AS AN ACADEMIC EXERC ISE. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE C ASE OF DUNDLOD SHIKSHAN GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT SANSTHAN VS. UNION OF INDIA (SUPRA) HAS ALSO CONSIDERED THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA (2015) 229 TAXMAN 596 WHEREIN THE HO N'BLE HIGH COURT HAS DECIDED THE NATURE OF DEMAND. THE HON'BLE HIGH COURT HAS HELD THAT SECTION 234E OF THE ACT IS NOT PUNITIVE I N NATURE BUT A FEE WHICH IS A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAS TO PROVE DUE TO THE LATE FILING OF THE TDS STAT EMENTS. HENCE FROM BOTH THE DECISIONS RELIED UPON BY THE LD. DR, THE I SSUE OF POWER OF IMPOSING LATE FEE IS NOT DECIDED BUT THE HON'BLE KA RNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS. UNION OF INDIA & ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSE SSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAISED VIDE IM PUGNED DEMAND NOTICE U/S 200 A 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 AS SESSEE SHOULD 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 O F CIT VS. VATIKA TOWNSHIP P. LTD. (2014) 367 ITR 466 (SC). IN VIEW O F THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VA TIKA TOWNSHIP (SUPRA), THE DEMAND SO RAISED ARE DIRECTED TO BE DE LETED. 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 DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION IN CASE OF 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 APPE LLANT 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 MECH ANISM FOR PROCESSING A TDS STATEMENT OF DEDUCTION OF TAX AT S OURCE AND FOR ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 10 MAKING ADJUSTMENT. THE LD. CIT(A) HAS FURTHER HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT AND H IGH COURT DECISIONS AND THEREFORE THIS DECISION IN 'RAJESH KA URANI' (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 L EVY OF FEE U/S 234E OF THE ACT. THE PROVISION OF SECTION 234E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROVISION WHICH COULD NO T BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY DELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. THE COUNSEL FOR THE ASSESSEE HAS RIG HTLY 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 S BI 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 THE 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 PERTAIN S TO LIABILITY OF LATE FEE U/S 234E OF THE ACT FOR DELAY IN FILING TD S 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 OF US (THE LD. J.M.). THE RELEVANT PART OF THE ORDER IS REPRODUCED 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 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE M ECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION OF TAX AT SOURC E AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) HAS HELD THAT THIS DECI SION WAS DELIVERED AFTER CONSIDERING NUMEROUS ITAT/HIGH COURT DECISION S AND SO, THIS DECISION IN 'RAJESH KAURANI' (SUPRA) HOLDS THE FIEL D. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI GROUP OF SBI AND ORS. ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 11 FATEHRAJ SINGHVI AND OTHERS VS.UOI ', 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES TH E 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 GUJARAT HIGH COURT WHILE PASSING 'RAJES H KAURANI' (SUPRA). HOWEVER, WHILE OBSERVING SO, THE LD. CIT(A ) HAS FAILED TO TAKE INTO CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFERENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED. IT HAS SO BEE N HELD BY THE HON'BLE SUPREME 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 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 PROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFF ECT. UNDER THE CIRCUMSTANCES, WE FIND THAT SUBSTITUTION MADE BY CL AUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN BE READ AS HAVI NG PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARACTER OR EFFE CT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMPUTATION AND INTIM ATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPOND ENT 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 AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESA ID VIEW WILL NOT PERMIT THE GROUP OF SBI AND ORS. DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST.' 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 TRIBUNAL, AND 'SHRI KA UR 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 ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 12 ACCEPTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS RE VERSED. THE LEVY OF THE FEE IS CANCELLED.' 11. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING 'SHRI FATEHRAJ SINGHVI AND ORS' (SUPRA), 'SIBIA HEALTHCARE PVT. LTD. VS. D CIT (SUPRA), 'SHRI KAUR CHAND JAIN VS. DCIT', (SUPRA), AND OUR OWN FIN DING IN THE CASE OF 'SUDERSHAN GOYAL' (SUPRA), WE ACCEPT THE GRIEVAN CE OF THE ASSESSEES AS GENUINE. ACCORDINGLY, THE ORDERS OF TH E CIT(A) ARE REVERSED AND THE FEE SO LEVIED UNDER SECTION 234E OF THE ACT IS CANCELLED. 14. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISION OF THE COORDINATE BENCH CONSISTENTLY HOLDING THAT IN T HE 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 CHARGED WHILE PROCESSING THE TDS RETURN/STATEMENT BECAUSE ENABLING CLAUSE (C) OF SUB -SECTION (1) OF SECTION 200A HAVE BEEN INSERTED W.E.F. 01.06.2015 A ND BEFORE THIS AMENDMENT W.E.F 01.06.2015 THERE WAS NO ENABLING PR OVISION IN THE ACT U/S 200A OF THE ACT FOR RAISING DEMAND IN RESPE CT 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 FINDINGS OF LD. CIT( A) IN ALL THESE APPEALS AND ALLOW THE COMMON ISSUE IN FAVOUR OF THE ASSESSEE. 10. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTANC ES OF THE CASE AS WELL AS FOLLOWING THE DECISIONS GIVEN BY US IN THE CASE OF STATE 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 DA TED 20.12.2018(SUPRA) AND BHUPESH KUMAR J. SANGHVI & OTHERS IN ITANO.15/IND/2018 & OTHERS, ORDER DATED 22.01.201 9(SUPRA) ARE OF THE OPINION THAT IN THE GIVEN SET OF FACTS OF THE INSTANT ITANOS. 640TO 642/IND/2019 JEEVANDHARA HOSPITAL P. LTD. 13 APPEALS WHEREIN FEE U/S 234E OF THE ACT WAS LEVIED IN THE STATEMENTS PROCESSED U/S 200A OF THE ACT BEFORE 01.0 6.2015 I.E. BEFORE THE AMENDMENT BROUGHT INTO EFFECT FROM 0 1.06.2015 IN SECTION 200A OF THE ACT THEREBY ENABLING THE REVE NUE AUTHORITIES TO RAISE DEMAND IN RESPECT OF LEVY OF FEES U/S 234E OF THE ACT. LD. CIT(A) ERRED IN CONFIRMING THE LE VY OF LATE FEES U/S 234E OF THE ACT BY THE ASSESSING OFFICER. ACCORD INGLY FINDINGS OF LD. CIT(A) IN ALL THESE THREE APPEALS ARE R EVERSED AND REVENUE IS DIRECTED TO DELETE THE LEVY OF FEES U/S 234E OF THE ACT IN THESE THREE CASES. THUS, COMMON ISSUE RAISED IN TH ESE APPEALS IS DECIDED IN FAVOUR OF THE ASSESSEE. 11. IN THE RESULT, THESE THREE APPEALS ITANOS.640 TO 642/IND/2019 AT THE INSTANCE OF ASSESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 25 .06.20 20. SD/- (MADHUMITA ROY) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 25/06/2020 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE