S D SENIOR SECONDARY SCHOOL, AMBALA CANTT V. ITO, TDS, KARNAL

ITA 7396/DEL/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7463 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 08-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M BARANWAL SR DR SL NO
• Keywords: Rectification of order; Period of limitation; Retrospective amendment; Right to appeal; TDS; Set aside
• Section: 234E; 200A; 192; 246A; 2(A); 13; 272A; 22; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI , . , BEFORE MS. SUSHMA CHOWLA, VP & DR. B.R.R. KUMAR , AM [THROUGH VIDEO CONFERENCING] SL. NO. ITA NOS. NAME OF APPELLANT NAME OF RESPOND ENT ASSESSMENT YEAR 1 7396/DEL/2017 S.D. SENIOR SECONDARY SCHOOL, HILL ROAD, AMBALA CANNT. HARYANA PAN-AACAS5679J ITO, TDS, KARNAL, HARYANA 2013-14 2 7397/DEL/2017 DO DO 2014-15 3 7398/DEL/2017 DO DO 2015-16 4 7399/DEL/2017 SANATAN DHARAM EDUCATIONAL SOCIETY, JAGADHRI ROAD, AMBALA CANNT. HARYANA PAN-AACAS9122Q ITO, TDS, KARNAL, HARYANA 2013-14 5 7400/DEL/2017 DO DO 2014-15 / APPELLANT BY : SH. SUDHIR SEHGAL, ADVOCATE / RESPONDENT BY : SH. M. BARANWAL, SR.DR SL. NO . ITA NOS. NAME OF APPELLANT NAME OF RESPONDENT ASSESSMENT YEAR QUARTER FORM 6 4363/DEL/2018 INSTA EXIBITIONS PVT. LTD. 1308-09,BEST SKY TOWER, F-5 NETAJI SUBHASDH PLACE, PITAMPURA, NEW DELHI PAN- AABCI0085P ACIT(TDS), CPC, AAYAKAR BHAWAN, SECTOR-3, VAISHALI GHAZIABAD 2013-14 (Q-2) 24Q 7 4364/DEL/2018 DO DO 2013-14 (Q-3) 24Q 8 4365/DEL/2018 DO DO 2013-14 (Q-4) 24Q 2 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 9 4366/DEL/2018 DO DO 2014-15 (Q-1) 24Q 10 4367/DEL/2018 DO DO 2014-15 (Q-2) 24Q 11 4368/DEL/2018 DO DO 2014-15 (Q-3) 24Q 12 4369/DEL/2018 DO DO 2014-15 (Q-4) 24Q 13 4370/DEL/2018 DO DO 2014-15 (Q-3) 26Q 14 4371/DEL/2018 DO DO 2014-15 (Q-4) 26Q 15 4372/DEL/2018 DO DO 2015-16 (Q-1) 26Q 16 4373/DEL/2018 DO DO 2015-16 (Q-2) 26Q 17 4374/DEL/2018 DO DO 2015-16 (Q-3) 26Q 18 4375/DEL/2018 DO DO 2015-16 (Q-4) 26Q 19 4376/DEL/2018 DO DO 2015-16 (Q-1) 24Q 20 4377/DEL/2018 DO DO 2015-16 (Q-2) 24Q 21 4378/DEL/2018 DO DO 2015-16 (Q-3) 24Q 22 4379/DEL/2018 DO DO 2015-16 (Q-4) 24Q / APPELLANT BY : SH. NARESH LATH, C.A. / RESPONDENT BY : SH. M. BARANWAL, SR.DR / DATE OF HEARING : 24.08.2020 / DATE OF PRONOUNCEMENT: 31.08.2020 / ORDER PER SUSHMA CHOWLA,VP THIS BUNCH OF APPEALS FILED BY DIFFERENT ASSESSEE ARE AGAINST RESPECTIVE ORDERS OF CIT(A) RELATING TO DIFFERENT ASSESSMENT Y EARS AGAINST RESPECTIVE INTIMATION ISSUED UNDER SECTION 200A(3) OF THE INCO ME-TAX ACT, 1961 (IN SHORT THE ACT). 3 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 2. BUNCH OF PRESENT APPEALS RELATING TO DIFFERENT A SSESSEES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER, FOR THE SAKE OF CONVENIENCE AS THE ISSUE RAISED IN ALL THESE APPEAL S IS SIMILAR. 3. THE ISSUE ARISING IN ALL THE APPEALS BEFORE US I S AGAINST INTIMATION ISSUED UNDER SECTION 200A OF THE ACT AND / OR ORDER PASSED UNDER SECTION 154 OF THE ACT IN CHARGING LATE FEES PAYABLE UNDER SECTION 234 E OF THE ACT. THE FIRST ASPECT OF THE ISSUE RAISED IN THE SET OF APPEALS IS CHARGI NG OF FEES PAYABLE UNDER SECTION 234E OF THE ACT PRIOR TO AMENDMENT TO SECTI ON 200A(1)(C) OF THE ACT VIDE FINANCE ACT, 2015 W.E.F. 01.06.2015, WHILE PROCESSI NG THE TDS RETURNS. THE ASSESSEE HAS ALSO POINTED THAT THE LEGISLATURE HAD INSERTED CLAUSE (C) TO SECTION 200A(1) OF THE ACT SPECIFICALLY W.E.F. 01.06.2015 A ND WHERE THERE IS NOTHING TO SUGGEST THAT THE SAID AMENDMENT WAS CLARIFICATORY O R RETROSPECTIVE IN NATURE, HENCE IN RESPECT OF TDS STATEMENTS FILED FOR THE PE RIOD PRIOR TO 01.06.2015, LATE FEES CHARGED UNDER SECTION 234E OF THE ACT COULD NO T BE LEVIED IN THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT. THE SECOND AS PECT OF THE ISSUE RAISED IS AGAINST THE ORDER OF THE CIT(A) IN HOLDING THAT WHE RE THE INTIMATION HAS BEEN ISSUED BY THE ASSESSING OFFICER BEFORE 01.06.2015 , NO FEE CAN BE CHARGED UNDER SECTION 234E OF THE ACT, BUT SAID FEE CAN BE CHARGED VIDE RECTIFICATION ORDER PASSED UNDER SECTION 154 OF THE ACT ISSUED AF TER 01.06.2015. 4. THE CIT(A) RELYING ON THE DECISION OF THE HONBL E RAJASTHAN HIGH COURT IN THE CASE OF DUNLOD SHIKSHAN SANSTHAN VS UOI IN [201 5] 63 TAXAMANN.COM 243(RAJ.) AND HONBLE GUJARAT HIGH COURT IN THE CAS E OF RAJESH KOURANI VS 4 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 UNION OF INDIA [2017] 83 TAXMANN.COM 137 (GUJ.) UPH ELD THE ORDER OF THE ASSESSING OFFICER. 5. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THA T THE PRESENT APPEALS ARE AGAINST THE LATE FEES CHARGED UNDER SECTION 234 E OF THE ACT FOR VARIOUS QUARTERS RELATING TO DIFFERENT ASSESSMENT YEARS FOR DEFAULT IN NOT FILING TDS RETURNS IN TIME. HE STRESSED THAT NO FEE CAN BE LEV IED UNDER SECTION 234E OF THE ACT FOR THE PERIODS PRIOR TO 01.06.2015, WHEN THE I NTIMATION UNDER SECTION 200A OF THE ACT WAS ISSUED. THE LD. AR FOR THE ASSE SSEE STATED THAT THE ISSUE STANDS COVERED BY VARIOUS DECISIONS OF THE DELHI TR IBUNAL. HE MADE REFERENCE TO THE RATIO LAID DOWN IN THE FOLLOWING DECISIONS:- I. UDIT JAIN VS ACIT ITA NO.5380/DEL/2017, ORDER DATED 29/11/2019. II. M/S WITS INTERIOR PVT. LTD. VS ACIT ITA NO.5321 TO 5331/DEL/2017, ORDER DATED 22/05/201 8. III. M/S SAMIKARAN LEARNING PRIVATE LTD. VS TDS OFFICER ITA NO.4050 TO 4054/DEL/2017, ORDER DATED 09/11/20 17. 6. THE LD. DR FOR THE REVENUE STRONGLY OBJECTED TO THE SUBMISSIONS MADE BY THE LD. AR FOR THE ASSESSEE. HE FAIRLY ADMITTED THAT THE DELHI BENCH OF THE TRIBUNAL IN UDIT JAIN VS ACIT (SUPRA) HAVE RECENTLY DECIDED THE ISSUE VIDE ORDER DATED 29.11.2019, BUT HE STRESSED THAT RULE O F CONSISTENCY COULD NOT BE APPLIED. IN THIS REGARD, HE PLACED RELIANCE ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF KRISHAK BHARATI COOPERATI VE LD. VS DCIT [2012] 23 TAXMANN.COM 265 (DEL.). HE ALSO PLACED RELIANCE ON WRITTEN SUBMISSION RELATING 5 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 TO THE PROVISIONS OF SECTION 234E OF THE ACT AND 20 0A OF THE ACT AND THEN TOOK US THROUGH PARA 10.1 ONWARDS TO PROPOSE THAT LATE F EE WHICH WAS PAYABLE UNDER SECTION 234E OF THE ACT WAS TO BE VOLUNTARILY PAID BY THE ASSESSEE ALONG WITH TDS RETURNS. HE REFERRED TO THE PROVISION OF S ECTION 200A OF THE ACT AND POINTED OUT THAT THESE WERE MACHINERY PROVISIONS AN D EVEN IN THE ABSENCE OF THE PROVISION OF SECTION 200A(1)(C) OF THE ACT, WHI CH WAS INSERTED WITH EFFECT FROM 01.06.2015, THE CHARGING OF LATE FEE UNDER SEC TION 234E OF THE ACT WAS AUTOMATIC PAYMENT TO BE MADE BY THE ASSESSEE IN DEF AULT. HE ALSO POINTED OUT THAT THE FEE CHARGED WAS NOT IN THE FORM OF TAX, PE NALTY, ETC, FOR WHICH SUCH MACHINERY PROVISIONS WERE REQUIRED. ON THE OTHER HA ND, THE FEE SO CHARGED WAS COMPENSATORY IN NATURE. THE RELEVANT PARAS 10.1 TO 10.3 OF THE WRITTEN SUBMISSIONS FILED BY THE DR FOR THE REVENUE READS A S UNDER:- 10.1. THE FEE PAYABLE U/S 234E IS A CHARGING PROV ISION AND THE AO HAS NO DISCRETION AT ALL WHEREAS SECTION 200A IS A MACHINERY PROVISION ENABLING FOR PROCESSING OF TDS STATEMENTS , COMPUTATION OF ADJUSTMENTS, FEES AND GENERATION OF INTIMATION ETC. HONBLE ITAT HAS NOT APPRECIATED THIS OBVIOUS DIFFERENCE IN ITS ORDER DT . 29.11.2019, REFERRED SUPRA. 10.2. AS APPARENT FROM THE HEADING OF THE SECTION 2 00A AS WELL AS THE MEMORANDUM TO THE FINANCE BILL, 2015 WHICH ELABORAT ES THE RATIONALE FOR INSERTION OF CLAUSE (C) IN SECTION 200A(1) IN T HE STATUTE (PARA 7 OF THE WRITTEN SUBMISSION) IT IS ABSOLUTELY CLEAR THAT THI S IS MERELY AN ENABLING SECTION TO COMPUTE/PROCESS THE TDS STATEMENT. SECTI ON 234 E IS THE CHARGING SECTION REQUIRING VOLUNTARY PAYMENT OF FEE BY THE DEFAULTING DEDUCTORS AS PER ITS SUB-SECTION (3) AS EVEN IN THE ABSENCE OF SECTION 200A OF THE ACT WITH INTRODUCTION OF SECTION 234E, IT WAS ALWAYS OPEN FOR THE REVENUE TO CHARGE THE FEES IN TERMS OF SECT ION 234 E OF THE ACT FROM THE DATE OF ITS INTRODUCTION IN THE STATUTE I. E. 01.07.2012. IT MAY BE NOTED THAT SECTION 234E CREATES AN AUTOMATIC CHARGE ON THE DEDUCTORS WHO HAVE DEFAULTED ON THIS COUNT & WHO ARE REQUIRED TO PAY THE FEE U/S 234E VOLUNTARILY BEFORE DELIVERING SUCH BELATED TDS /TCS RETURNS /STATEMENTS IN ACCORDANCE WITH SUB-SECTION (3) OF S EC. 234E. BY 6 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 AMENDMENT [INTRODUCTION OF CLAUSE 200A(L)(C)] THIS ADJUSTMENT WAS BROUGHT WITHIN THE FOLD OF SECTION 200A OF THE IT A CT SO THAT THE FEE U/S 234E CAN BE COMPUTED AT THE TIME OF PROCESSING & IS SUE OF INTIMATION IN THE EVENT OF NON-PAYMENT OF FEE BEFORE DELIVERING S UCH BELATED TDS/TCS STATEMENTS BY THE DEFAULTING DEDUCTORS. ANY VIEW TH AT INHIBITS THE LEVY OF FEES UNDER SECTION 234 E DUE TO THE ABSENCE OF R EGULATORY PROVISION WILL TANTAMOUNT TO CHARGING SECTION YIELDING TO MAC HINERY PROVISION WHICH SHOULD NOT BE ALLOWED. THIS HAS NOT BEEN CONS IDERED BY HONBLE ITAT. 10.3. SECTION 200A ENTAILS THE PROCEDURE FOR PROCED URE FOR PROCESSING OF TDS RETURNS. AMENDED SECTION OF 200A (1 )(C), WITH EFFECT FROM 01/06/2015, ENABLES COMPUTATION OF FEES CHARGEABLE U/S 234E UNDER THE PURVIEW OF 200A. THEREFORE, IF ANY TDS RETURN I S PROCESSED AFTER 01/06/2015, THEN FEES CHARGEABLE U/S 234E IS REQUIR ED TO BE COMPUTED AS PER SECTION 200A(L)(C) BY VIRTUE OF THE FACT THA T THE CHARGING SECTION WAS ALREADY EFFECTIVE SINCE 01/07/2012. SIMILAR WIL L BE THE SCENARIO IF TDS RETURN WITH DEFAULT OF BEING DELAYED IS SUBMITT ED AFTER 01/06/2015 AND PROCESSING IS DONE THEREAFTER. SINCE THE CHARGI NG SECTION WAS ALREADY EFFECTIVE ON THE DATE OF OCCURRENCE OF DEFA ULT (I.E. THE DUE DATE FILING OF TDS RETURN ON WHICH TDS RETURN WAS NOT FI LED), ANY TDS RETURN PROCESSED AFTER INTRODUCTION OF CLAUSE 200A(1) (C ) ( I.E. GIVING EFFECT TO COMPUTATION OF FEES U/S 234E OF THE ACT) SHOULD INC LUDE COMPUTATION OF FEES UNDER SECTION 234E. THIS ALSO NEEDS CONSIDERAT ION BY HONBLE ITAT. 7. THE LD. DR FOR THE REVENUE PLACED RELIANCE ON TH E FOLLOWING DECISIONS:- I. RASHMIKANT KUNDALIA (BOM.) (2015) 54 TAXMAN.COM 200 (BOM). II. DUNLOD SHIKSHAN SANSTHAN VS UOI IN [2015] 63 TAXAMA NN.COM 243(RAJ.) III. RAJESH KOURANI VS UNION OF INDIA [2017] 83 TAXMANN. COM 137 (GUJ.) IV. QATALYS SOFTWARE TECHNOLOGIES (P.) LTD. VS UOI [202 0] 115 TAXMANN.COM 345 (MADRAS) 7 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 8. HE THEN REFERRED TO THE DECISION OF THE KARNATAK A HIGH COURT IN THE CASE OF FATEH RAJ SINGHVI & ORS. VS UOI [2016] 289 CTR 6 02(KAR.) IN PARA 10.14 ONWARDS AND CONCLUDED PARA 10.15, WHICH READS AS U NDER:- 10.15 ON PERUSAL OF THE DECISIONS OF VARIOUS HIGH COURTS WHEREIN THE CONSTITUTIONAL VALIDITY OF PROVISIONS O F SEC. 234E HAVE BEEN UPHELD, IT MAY BE SEEN THAT IN SEVERAL CA SES THE PERIOD UNDER CONSIDERATION BEFORE HONBLE HIGH COUR TS WERE EVEN THE PERIODS PRIOR TO 01.06.2015 I.E. THE DATE WHEN CLAUSE (C) WAS INSERTED TO SECTION 200A(1) BY THE FINANCE ACT, 2015. HAVING CONSIDERED THE PERIODS PRIOR TO 01.06.2015 & HAVING UPHELD THE VALIDITY OF SEC. 234E BY HONBLE HIGH CO URTS, IT CANT BE SAID THAT THE CONTROVERSY, BEING RAISED NOW, HAS ESCAPED THE EYES OF HONBLE HIGH COURTS AND THEREFORE THERE CAN T BE ANY DOUBT THAT THERE IS ANY IOTA OF AMBIGUITY WITH RESP ECT TO THE PERIOD OF DEFAULT FOR WHICH THE FEE U/S 234E IS CHA RGEABLE. IN VIEW OF THE SAME AND CATEGORICAL FINDINGS OF HONBL E HIGH COURTS, THE FEE U/S 234E IS UNDOUBTEDLY LEVIABLE FO R THE DEFAULTS OF PERIOD IN FILING TDS/TCS STATEMENTS/RET URNS, EVEN FOR THE PERIOD PRIOR TO 01.06.2015 INDEPENDENT TO T HE PROVISIONS OF SEC.200A(L) OF THE ACT. THE SAME HAVE NOT BEEN C ONSIDERED BY HONBLE ITAT. 9. THE LD. AR FOR THE ASSESSEE ON THE OTHER HAND ST RESSED THAT THE ISSUE HAS BEEN CONSIDERED BY THE KARNATAKA HIGH COURT IN FATEH RAJ SINGHVI & ORS. VS UOI (SUPRA) WHICH HAS BEEN TAKEN NOTE OF BY THE TRIBUNAL IN THE CASE OF UDIT JAIN VS ACIT (SUPRA) AND OTHER APPEALS DECIDED BY B ENCHES OF DELHI TRIBUNAL. 10. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE RECORD. THE ISSUE WHICH IS ARISING IN THE PRESENT SET OF APPEALS IS A GAINST THE CHARGEABILITY OF LATE FILING FEE IN TERMS OF SECTION 234E OF THE ACT. THE ISSUE WHICH IS RAISED BY DIFFERENT ASSESSEE BEFORE US IS WHETHER WHERE THE R ETURN FOR THE TDS DEDUCTION WAS FILED UNDER RESPECTIVE SECTIONS OF THE ACT, FOR THE PERIOD PRIOR TO 8 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 01.06.2015 THOUGH BELATEDLY, BUT NO LATE FILING FEE CAN BE CHARGED UNDER SECTION 234E OF THE ACT. THE MACHINERY PROVISIONS O F CHARGING THE SAID FEE AS PER CLAUSE (C) OF SECTION 200A(1) OF THE ACT WAS IN SERTED BY LEGISLATURE WITH EFFECT FROM 01.06.2015. WE FIND THAT THE SAID ISSUE HAS BEEN DECIDED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATEH R AJ SINGHVI & ORS. VS UOI (SUPRA) AND IT IS HELD THAT SECTION 200A OF THE ACT INSERTED WITH EFFECT FROM 01.06.2015 HAD PROSPECTIVE EFFECT AND WAS NOT APPLI CABLE FOR DIFFERENT QUARTERS OF ASSESSMENT YEARS PRIOR TO 01.06.2015. THE DELHI BENCH OF THE TRIBUNAL WHILE DECIDING THE APPEALS IN THE CASE OF UDIT JAIN VS ACIT (SUPRA) HAD TAKEN NOTE OF THE ISSUE BEING DECIDED BY THE PUNE BENCH O F THE TRIBUNAL IN MAHARASHTRA CRICKET ASSOCIATION, PUNE VS DCIT [2016 ] 74 TAXMANN.COM 6(PUNE TRIB.), IN THE CASE OF MEDICAL SUPERINTENDEN T RURAL HOSPITAL, DOBI BK VS DCIT [2018] 100 TAXMANN.COM 78 (PUNE-TRIB.) AND DECISION OF THE DELHI BENCH OF TRIBUNAL IN MEGHNA GUPTA VS ACIT[2018] 99 TAXMANN.COM 334 (DELHI TRIB.). FURTHER, THE DELHI BENCH OF THE TRIBUNAL HA VE CONSISTENTLY TAKEN SIMILAR VIEW IN THE CASE OF M/S SAMIKARAN LEARNING PRIVATE LTD. VS TDS OFFICER (SUPRA). THE RELEVANT FINDING OF THE TRIBUNAL IN TH E CASE OF UDIT JAIN VS ACIT (SUPRA), WHEREIN REFERENCE IS MADE TO THE DECISION OF THE KARNATAKA HIGH COURT IN FATEH RAJ SINGHVI & ORS. VS UOI (SUPRA) AND ALSO THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS UOI (SUPRA) IS AS UNDER:- 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH NEEDS TO BE ADJUDICATED IN THESE APPEAL S IS THE CHARGING OF LATE FILING FEE U/S 234E OF THE ACT WHILE ISSUING T HE INTIMATION U/S 200A OF THE ACT. THE CASE OF THE ASSESSEE BEFORE US IS THA T WHERE THE LEGISLATURE 9 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 HAS INSERTED CLAUSE (C) TO SECTION 200A(1) OF THE A CT W.E.F 01.06.2015, THEN IN RESPECT OF THE TDS STATEMENTS WHICH WERE FILED U NDER THE RESPECTIVE SECTIONS OF THE ACT, FOR THE PERIOD PRIOR TO 01.06. 2015, NO LATE FILING FEE COULD BE CHARGED U/S 234E OF THE ACT, IN THE INTIMA TION ISSUED U/S 200A OF THE ACT. WE FIND THAT THE SAID ISSUE HAS BEEN ADJU DICATED BY THE HONBLE KARNATAKA HIGH COURT IN FATEHRAJ SINGHVI & OTHERS V S UNION OF INDIA (SUPRA), WHICH PROPOSITION HAS BEEN APPLIED BY THE PUNE BENCH OF THE TRIBUNAL IN MEDICAL SUPERINTENDENT RURAL HOSPITAL, DOBI BK VS DCIT (SUPRA). THE TRIBUNAL HAD ALSO TAKEN NOTE OF THE D ECISION OF HONBLE GUJARAT HIGH COURT IN RAJESH KOURANI VS UNION OF IN DIA (SUPRA) AND APPLYING THE PROPOSITION THAT WHERE THERE WAS DIFFE RENCE OF OPINION BETWEEN HONBLE HIGH COURTS ON A PARTICULAR ISSUE A ND IN THE ABSENCE OF ANY DECISION RENDERED BY THE JURISDICTIONAL HIGH CO URT, THEN THE DECISION IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED AS H ELD BY HONBLE SUPREME COURT IN VEGETABLES PRODUCTS LTD. [1973] 88 ITR 192 (SC). THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER:- 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEALS I S AGAINST LEVY OF LATE FILING FEES UNDER SECTION 234E OF THE ACT WHIL E ISSUING INTIMATION UNDER SECTION 200A OF THE ACT, IN THE FIRST BUNCH O F APPEALS. THE SECOND BUNCH OF APPEALS IN THE CASE OF JUNAGADE HEA LTHCARE PVT. LTD. IS AGAINST ORDER OF ASSESSING OFFICER PASSED U NDER SECTION 154 OF THE ACT REJECTING RECTIFICATION APPLICATION MOVE D BY ASSESSEE AGAINST INTIMATION ISSUED LEVYING LATE FILING FEES CHARGED UNDER SECTION 234E OF THE ACT. THE CASE OF ASSESSEE BEFOR E US IS THAT THE ISSUE IS SQUARELY COVERED BY VARIOUS ORDERS OF TRIB UNAL, WHEREIN THE ISSUE HAS BEEN DECIDED IN RESPECT OF LEVY OF LATE F ILING FEES UNDER SECTION 234E OF THE ACT, IN THE ABSENCE OF EMPOWERM ENT BY THE ACT UPON ASSESSING OFFICER TO LEVY SUCH FEES WHILE ISSU ING INTIMATION UNDER SECTION 200A OF THE ACT. THE TRIBUNAL VIDE OR DER DATED 21.09.2016 WITH LEAD ORDER IN ITA NOS.560/PN/2016 & 561/PN/2016, 1018/PN/2016 TO 1023/PN/2016 IN MAHARA SHTRA CRICKET ASSOCIATION VS. DCIT (CPC)-TDS, GHAZIABAD, RELATING TO ASSESSMENT YEARS 2013-14 AND 2014-15 FOR THE RESPEC TIVE QUARTERS DELIBERATED UPON THE ISSUE AND HELD AS UNDER:- 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 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 10 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 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. 12. THE SAID PROPOSITION HAS BEEN APPLIED IN THE NE XT BUNCH OF APPEALS WITH LEAD ORDER IN VIDYA VARDHANI EDUCATION AND RES EARCH FOUNDATION IN ITA NOS.1887 TO 1893/PUN/2016 AND OTHERS RELATING T O ASSESSMENT YEARS 2013-14 AND 2014-15 VIDE ORDER DATED 13.01.2017 AND ALSO IN SWAMI VIVEKANAND VIDYALAYA VS. DCIT(CPC)-TDS (SUPRA) AND MEDICAL SUPERINTENDANT RURAL HOSPITAL VS. ACIT (CPC)-TDS IN ITA NOS.2072 & 2073/PUN/2017, ORDER DATED 21.12.2017, WHICH HAS BE EN RELIED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE. 13. THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI VS. UNION OF INDIA (SUPRA) HAD ALSO LAID DOWN SIMIL AR PROPOSITION THAT THE AMENDMENT TO SECTION 200A OF THE ACT W.E.F. 01.06.2 015 HAS PROSPECTIVE EFFECT AND IS NOT APPLICABLE FOR THE PERIOD OF RESP ECTIVE ASSESSMENT YEARS PRIOR TO 01.06.2015. THE RELEVANT FINDINGS OF THE H ONBLE 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 A ND THE INTENTION THEN, THE OTHER MECHANISM PROVIDED FOR COMPUTATION OF FEE AND FAILURE FOR PAYMENT OF FEE UNDER 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 UP ON THE AUTHORITY. IT IS TRUE THAT, A REGULATORY 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 REG ULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER UPON THE AUT HORITY WOULD ALSO BE A ASPECT WHICH MAY BE REQUIRED TO BE CONSID ERED 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 R EQUIRED TO BE CONSIDERED AND EXAMINED. NOT ONLY THAT, 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 ONE CONSIDERS REGULATORY MECHANISM OR PROVISION FOR REGULATING THE MODE AND THE MANNER OF RECOVERY AND ITS ENFORCEABIL ITY AS RETROACTIVE. IF AT THE TIME WHEN THE FEE WAS PROVID ED 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 11 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 UNDER SECTION 272A BY INSERTION OF PROVISO TO SECTI ON 272A(2), IT CAN BE SAID THAT A PARTICULAR SET UP FOR IMPOSITION AND THE PAYMENT OF FEE UNDER SECTION 234E WAS PROVIDED BUT, IT DID NOT PRO VIDE FOR MAKING OF DEMAND OF SUCH FEE UNDER SECTION 200A PAYABLE UN DER SECTION 234E. HENCE, CONSIDERING THE AFORESAID PECULIAR FAC TS AND CIRCUMSTANCES, WE ARE UNABLE TO ACCEPT THE CONTENTI ON OF THE LEARNED COUNSEL FOR RESPONDENT-REVENUE THAT INSERTION OF CL AUSE (C) TO (F) UNDER SECTION 200A(1) SHOULD BE TREATED AS RETROACT IVE 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 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 PURPORTED E XERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEV ER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FE E AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WIL L NOT PERMIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST. 14. THE HONBLE HIGH COURT THUS HELD THAT WHERE THE IMPUGNED NOTICES GIVEN BY REVENUE DEPARTMENT UNDER SECTION 200A OF T HE ACT WERE FOR THE PERIOD PRIOR TO 01.06.2015, THEN SAME WERE ILLEGAL AND INVALID. VIDE PARA 27, IT WAS FURTHER HELD THAT THE IMPUGNED NOTICES U NDER SECTION 200A OF THE ACT WERE FOR COMPUTATION AND INTIMATION FOR PAY MENT OF FEES UNDER SECTION 234E OF THE ACT AS THEY RELATE FOR THE PERI OD OF TAX DEDUCTED AT SOURCE PRIOR TO 01.06.2015 WERE BEING SET ASIDE. 15. IN OTHER WORDS, THE HONBLE HIGH COURT OF KARNA TAKA EXPLAINED THE POSITION OF CHARGING OF LATE FILING FEES UNDER SECT ION 234E OF THE ACT AND THE MECHANISM PROVIDED FOR COMPUTATION OF FEES AND FAIL URE FOR PAYMENT OF FEES UNDER SECTION 200A OF THE ACT WHICH WAS BROUGH T ON STATUTE W.E.F. 01.06.2015. THE SAID AMENDMENT WAS HELD TO BE PROSP ECTIVE IN NATURE AND HENCE, NOTICES ISSUED UNDER SECTION 200A OF THE ACT FOR COMPUTATION AND INTIMATION FOR PAYMENT OF LATE FILING FEES UNDE R 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 HONBLE HIGH COURT. IN VIEW OF SAID PROPOSITION BEING LAID DOWN BY THE HONBLE HIG H COURT OF KARNATAKA 12 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 (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 CHARGING LATE FILI NG FEES WAS PASSED AFTER JUNE, 2015, THEN THE SAME ARE MAINTAINABLE, S INCE THE AMENDMENT HAD COME INTO EFFECT. THE CIT(A) HAS OVERLOOKED THE FACT THAT NOTICES UNDER SECTION 200A OF THE ACT WERE ISSUED FOR COMPUTING A ND CHARGING LATE FILING FEES UNDER SECTION 234E OF THE ACT FOR THE PERIOD O F TAX DEDUCTED PRIOR TO 1ST DAY OF JUNE, 2015. THE SAME CANNOT BE CHARGED B Y ISSUE OF NOTICES AFTER 1ST DAY OF JUNE, 2015 EVEN WHERE THE RETURNS WERE FILED BELATEDLY BY THE DEDUCTOR AFTER 1 ST JUNE, 2015, WHERE IT CLEARLY RELATED TO THE PERIOD PRIOR TO 01.06.2015. 16. WE HOLD THAT THE ISSUE RAISED IN THE PRESENT BU NCH OF APPEALS IS IDENTICAL TO THE ISSUE RAISED BEFORE THE TRIBUNAL I N DIFFERENT BUNCHES OF APPEALS AND SINCE THE AMENDMENT TO SECTION 200A OF THE ACT WAS PROSPECTIVE IN NATURE, THE ASSESSING OFFICER WHILE PROCESSING TDS RETURNS / STATEMENTS FOR THE PERIOD PRIOR TO 01.06.2015 WAS N OT EMPOWERED TO CHARGE LATE FILING FEES UNDER SECTION 234E OF THE A CT, EVEN IN CASES WHERE SUCH TDS RETURNS WERE FILED BELATEDLY AFTER JUNE, 2 015 AND EVEN IN CASES WHERE THE ASSESSING OFFICER PROCESSED THE SAID TDS RETURNS AFTER JUNE, 2015. ACCORDINGLY, WE HOLD THAT INTIMATION ISSUED B Y ASSESSING OFFICER UNDER SECTION 200A OF THE ACT IN ALL THE APPEALS DO ES NOT STAND AND THE DEMAND RAISED BY CHARGING LATE FILING FEES UNDER SE CTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. 17. BEFORE PARTING, WE MAY ALSO REFER TO THE ORDER OF CIT(A) IN RELYING ON THE DECISION OF HONBLE HIGH COURT OF GUJARAT IN RA JESH KOURANI VS. UNION OF INDIA (SUPRA). ON THE OTHER HAND, THE LEARNED AU THORIZED REPRESENTATIVE FOR THE ASSESSEE HAS POINTED OUT THAT THE ISSUE IS SETTLED IN FAVOUR OF ASSESSEE BY THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI VS. UNION OF INDIA (SUPRA). SINCE WE HAVE A LREADY RELIED ON THE SAID RATIO LAID DOWN BY THE HONBLE HIGH COURT OF K ARNATAKA, THE CIT(A) HAS MIS-REFERRED TO BOTH DECISIONS OF HONBLE HIGH COURT OF KARNATAKA AND HONBLE HIGH COURT OF GUJARAT; BUT THE CIT(A) HAS F AILED TO TAKE INTO CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS D IFFERENCE 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'BL E SUPREME COURT IN CIT VS. M/S. VEGETABLE PRODUCTS LTD. (SUPRA), IN TH E ABSENCE OF ANY DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT. THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDI A (2015) 54 TAXMANN.COM 200 (BOM) HAD DECIDED THE CONSTITUTIONA L VALIDITY OF PROVISIONS OF SECTION 234E OF THE ACT AND HAD HELD THEM TO BE ULTRA VIRES BUT HAD NOT DECIDED THE SECOND ISSUE OF AMENDMENT B ROUGHT TO SECTION 200A OF THE ACT W.E.F. 01.06.2015. IN VIEW THEREOF, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF KA RNATAKA AND PUNE 13 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 BENCH OF TRIBUNAL IN SERIES OF CASES, WE DELETE THE LATE FILING FEES CHARGED UNDER SECTION 234E OF THE ACT FOR THE TDS RETURNS F OR THE PERIOD PRIOR TO 01.06.2015. 18. FURTHER BEFORE PARTING, WE MAY ALSO REFER TO TH E ORDER OF CIT(A) IN THE CASE OF JUNAGADE HEALTHCARE PVT. LTD., WHERE THE CI T(A) HAD DISMISSED APPEALS OF ASSESSEE BEING DELAYED FOR PERIOD OF DEC EMBER, 2013 AND JULY, 2014. THE CIT(A) WHILE COMPUTING DELAY HAD TAKEN TH E DATE OF INTIMATION UNDER SECTION 200A OF THE ACT AS THE BASIS, WHEREAS THE ASSESSEE HAD FILED APPEALS BEFORE CIT(A) AGAINST THE ORDER PASSE D UNDER SECTION 154 OF THE ACT. THE CIT(A) HAD NOTED THAT RECTIFICATION AP PLICATION WAS FILED IN FEBRUARY, 2018 WHICH WAS REJECTED BY CPC ON THE SAM E DAY. THE CIT(A) WAS OF THE VIEW THAT THERE WAS NO MERIT IN CONDONAT ION OF DELAY, WHEREIN APPEALS WERE FILED BEYOND THE PERIOD PRESCRIBED. TH E ASSESSEE HAD FILED 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 ORDER PASSED UNDER SECTIO N 154 OF THE ACT AND NOT FROM THE DATE OF ISSUE OF INTIMATION. THUS, THE RE IS NO MERIT IN THE ORDER OF CIT(A) IN DISMISSING THE APPEALS OF ASSESSEE ON THIS ISSUE. 19. WE FIND SIMILAR ISSUE HAS BEEN DECIDED BY US IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL VS. ACIT(CPC)-TDS (SU PRA) AND VIDE PARA 15, ORDER DATED 21.12.2017 IT WAS HELD 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 DISMISS ED THE APPEALS OF THE ASSESSEE BEING DELAYED FOR A PERIOD OF TWO A ND HALF YEARS. THE CIT(A) HAD TAKEN THE DATE OF INTIMATION UNDER S ECTION 200A(3) DATED 07-08-2014 AND COMPUTED THE DELAY IN FILING T HE APPEAL LATE BEFORE HIM. HOWEVER, THE ASSESSEE HAD FILED THE APP EAL BEFORE THE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 O F THE ACT. THE SAID APPLICATION FOR RECTIFICATION UNDER SECTION 15 4 WAS FILED ON 08- 06-2017/09- 03-2017 IN THE RESPECTIVE YEARS. THE SA ID APPLICATION WAS DECIDED BY THE ASSESSING OFFICER ON 09-06-2017. THE ASSESSEE FILED AN APPEAL AGAINST THE DISMISSAL OF THE RECTIF ICATION APPLICATION FILED UNDER SECTION 154 OF THE ACT. THE SAID FACT I S CLEAR FROM THE PERUSAL OF FORM NO.35 WITH SPECIAL REFERENCE TO COL UMN 2(A) AND 2(B). IN THE ENTIRETY OF THE ABOVE SAID FACTS AND C IRCUMSTANCES, WE FIND NO MERIT IN THE ORDER OF CIT(A) IN THE CASE OF MEDICAL SUPERINTENDENT RURAL HOSPITAL, SURGANA IN DISMISSIN G THE APPEAL IN- LIMINE BEING FILED BEYOND THE PERIOD OF LIMITATION. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAVOUR OF ASSESSEE. 14 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 20. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAVOUR OF ASSESSEE. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN ALL APPEALS ARE ALLOWED. 11. REFERENCE IS ALSO MADE TO THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN MEGHNA GUPTA VS ACIT (SUPRA), THE SAME READS AS UNDER:- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO P ERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS AS WE LL AS MATERIAL REFERRED TO BEFORE US. AT THE OUTSET, FROM THE PERU SAL OF THE RECTIFICATION ORDER U/S 200A GENERATED BY TDS (CPC) , IT IS NOTICED THAT THE TDS IN 26QB MENTIONS DATE OF FILING OF 'CH ALLAN CUM STATEMENT' AS 5.4.2014, WHEREIN LATE FILING OF 'CHA LLAN CUM STATEMENT' U/S 234E HAS BEEN LEVIED. THE ASSESSEE HAD PURCHASE D THE PROPERTY ON 6.12.2013 I.E., RELEVANT TO THE ASSESSM ENT YEAR 2014-15. SINCE ASSESSEE HAD PURCHASED THE PROPERTY FROM EIGH T SELLERS AND THE PAYMENT TO EACH OF THE SELLER HAS BEEN MADE SEP ARATELY FOR AN AMOUNT OF RS. 41,87,500/- AGGREGATING TO RS. 3,35,0 0,000/-, THE ASSESSEE' CONTENTION HAS BEEN THAT IT WAS NOT REQUI RED TO DEDUCT TDS, BECAUSE THE PAYMENTS MADE TO EACH SELLER WAS L ESS THAN THE PRESCRIBED LIMIT OF RS.50 LACS AND THEREFORE, PROVI SION OF SECTION 194IA WAS NOT APPLICABLE. THE DEMAND HAS BEEN RAISE D BY THE DEPARTMENT U/S 200 IN TERMS OF FAILURE TO COMPLY WI TH SECTION 200A, WHICH DEALS WITH THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200. FIRST OF ALL, SUB SECTION 3 OF SECT ION 200 PROVIDES THAT THE PERSON DEDUCTING ANY SUM IN ACCORDANCE WIT H PROVISION OF CHAPTER XVII SHALL AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME, PREP ARE SUCH STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED. PRO VISION OF SECTION 200A PROVIDES THAT WHERE THE STATEMENT OF TAX DEDUC TION AT SOURCE HAS BEEN MADE BY THE PERSON DEDUCTING ANY SUM U/S 2 00, THEN SUCH STATEMENT SHALL BE PROCESSED IN THE MANNER GIV EN THEREIN. CLAUSE (C) OF SECTION 200A HAS BEEN SUBSTITUTED BY THE FINANCE ACT 2015 W.E.F. 1.6.2015 WHICH READS AS UNDER:- '(C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E;' 6.1. FEE FOR DEFAULT U/S 234E PROVIDES THAT, WHEN A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED U/S 200(3), THEN THAT PERSON SHALL BE LI ABLE TO PAY FEE IN THE MANNER PROVIDED THEREIN. THUS, FEE U/S 234E IS LEVIABLE IF THE STATEMENT IS NOT FILED AS PRESCRIBED U/S 200(3) WHI CH IN TURN 15 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 PROVIDES THAT THE STATEMENT TO BE FILED AFTER THE P AYMENT OF TAX TO THE PRESCRIBED AUTHORITY. THE RELEVANT RULE 31A(4A) PRO VIDES THAT FOR FILING OF THE 'CHALLAN CUM STATEMENT' WITHIN SEVEN DAYS FROM THE DATE OF DEDUCTION. NOW HERE IN THIS CASE THE DEMAND HAS BEEN RAISED PURELY ON THE GROUND THAT STATEMENT HAS NOT BEEN FU RNISHED FOR THE TAX DEDUCTION AT SOURCE. AS STATED ABOVE, THE ASSES SEE HAS DULY DEPOSITED THE TAX NOT AT THE TIME OF PURCHASE ALBEI T ON 5.4.2014 AND ON THE SAME DATE, STATEMENT HAS ALSO BEEN FILED. TH E RELEVANT PROVISION OF SECTION 200(3) READ WITH RULE 31A (4A) ONLY REFERS TO FILING OF 'CHALLAN CUM STATEMENT' AFTER THE TAX HAS BEEN PAID. THE WORD 'CHALLAN' IN THE SAID RULE INDICATES THAT THE TAX MUST STAND PAID AND THAT IS HOW FORM 26QB IS GENERATED. THUS, HERE IN THIS CASE, IT CANNOT BE HELD THAT THERE IS ANY VIOLATION OF SECTION 200(3). IN ANY CASE, THE LEVY OF FEE U/S 200A IN ACCORDANCE WI TH THE PROVISION OF SECTION 234E HAS COME INTO THE STATUTE W.E.F. 1. 6.2015. SINCE THE CHALLAN AND STATEMENT HAS BEEN FILED MUCH PRIOR TO THIS DATE, THEREFORE, NO SUCH TAX CAN BE LEVIED U/S 200A. THIS HAS BEEN CLARIFIED AND HELD BY HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS VS. UNION OF INDIA REPORTED IN (2016) 289 CTR 0602, WHEREIN THE LORDSHIP HAD MADE FOLLOWING O BSERVATIONS :- '14. WE MAY NOW DEAL WITH THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE APPELLANTS. THE FIRST CONTENTION FO R ASSAILING THE LEGALITY AND VALIDITY OF THE INTIMATION UNDER SECTI ON 200A WAS THAT, THE PROVISION OF SECTION 200A(1)(C), (D) AND (F) HA VE COME 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 S ECTION 234E IN RESPECT OF THE ASSESSMENT YEAR OF THE EARLIER PERIO D AND THE RETURN FILED FOR THE SAID RESPECTIVE ASSESSMENT YEARS NAME LY ALL ASSESSMENT YEARS AND THE RETURNS PRIOR TO 1.6.2015. IT WAS SUBMITTED THAT, WHEN NO EXPRESS AUTHORITY WAS CONFE RRED BY THE STATUTE UNDER SECTION 200A PRIOR TO 1.6.2015 FOR CO MPUTATION OF ANY FEE UNDER SECTION 234E NOR THE DETERMINATION THEREO F, THE DEMAND OR THE INTIMATION FOR THE PREVIOUS PERIOD OR PREVIOUS YEAR PRIOR TO 1.6.2015 COULD NOT HAVE BEEN MADE.' 7. THUS, WE HOLD THAT NO FEE WAS LEVIABLE TO THE AS SESSEE U/S 234E IN VIOLATION OF SECTION 200(3), BECAUSE ASSESSEE HA D FURNISHED THE STATEMENT IMMEDIATELY AFTER DEPOSITING ALL THE TAX WITHOUT ANY DELAY. ACCORDINGLY, THE DEMAND ON ACCOUNT OF 234E I S CANCELLED. 8. SIMILARLY INTEREST U/S 220(2) CANNOT BE LEVIED W HEN FEE U/S 234E ITSELF IS NOT LEVIABLE. IN SO FAR AS CHARGING OF IN TEREST U/S 201(IA), THE SAME CANNOT BE CHARGED AS ADMITTEDLY NO ORDER U/S 2 01(1) HAS BEEN 16 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 PASSED HOLDING THE ASSESSEE TO BE 'ASSESSEE IN DEFA ULT' AND, THEREFORE, SUCH AN INTEREST IS ALSO DELETED. 12. WE MAY ALSO REFER TO THE DECISION OF THE PUNE B ENCH OF THE TRIBUNAL IN THE CASE OF MAHARASHTRA CRICKET ASSOCIATION VS DCIT (SUPRA), WHEREIN REFERENCE WAS MADE TO THE RELIANCE PLACED BY THE REVENUE ON T HE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALA I VS UNION OF INDIA (SUPRA) AND IT WAS OBSERVED AS UNDER:- 27. WHILE DECIDING THE PRESENT BUNCH OF APPEALS, T HE REVENUE HAD PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONB LE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (SU PRA) WHEREIN, THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT WAS CHALLENGED. THE HONBLE HIGH COURT NOTED THE FACT THAT WHERE THE DE DUCTOR WAS REQUIRED TO FURNISH PERIODICAL QUARTERLY STATEMENTS CONTAINI NG THE DETAILS OF DEDUCTION OF TAX MADE DURING THE QUARTER, BY THE PR ESCRIBED DUE DATE AND THE DELAY IN FURNISHING SUCH TDS RETURNS WOULD HAVE CASCADING EFFECT. IT WAS FURTHER OBSERVED BY THE HONBLE HIGH COURT THAT UNDER THE INCOME-TAX ACT, WHERE THERE IS AN OBLIGATION ON THE INCOME-TAX DEPARTMENT TO PROCESS THE INCOME-TAX RETURNS WITHIN SPECIFIED PERIOD FROM THE DATE OF FILING, THE RETURNS COULD NOT BE A CCURATELY PROCESSED OF SUCH PERSON ON WHOSE BEHALF TAX HAS BEEN DEDUCTED I .E. DEDUCTEE, UNTIL INFORMATION OF SUCH DEDUCTIONS IS FURNISHED BY THE DEDUCTOR WITHIN THE PRESCRIBED TIME. SINCE THE SUBSTANTIAL NUMBER OF DE DUCTORS WERE NOT FILING THEIR TDS RETURNS / STATEMENTS WITHIN PRESCR IBED TIME FRAME, THEN IT LEAD TO AN ADDITIONAL WORK BURDEN UPON THE DEPAR TMENT DUE TO THE FAULT OF THE DEDUCTOR AND IN THIS LIGHT AND TO COMP ENSATE FOR ADDITIONAL WORK BURDEN FORCED UPON THE DEPARTMENT, FEES WAS SO UGHT TO BE LEVIED UNDER SECTION 234E OF THE ACT. THE HONBLE HIGH COU RT HELD THAT LOOKING AT THIS FROM THIS PERSPECTIVE, SECTION 234E OF THE ACT WAS NOT PUNITIVE IN NATURE BUT A FEE WHICH WAS A FIXED CHARGE FOR THE E XTRA SERVICE WHICH THE DEPARTMENT HAD TO PROVIDE DUE TO THE LATE FILIN G OF TDS STATEMENTS. IT WAS FURTHER HELD BY THE HONBLE HIGH COURT THAT LAT E FILING OF TDS RETURNS / STATEMENTS WAS REGULARIZED BY PAYMENT OF FEES AS SET OUT IN SECTION 234E OF THE ACT. THEREFORE, THE FINDINGS OF HONBLE HIGH COURT WERE THUS, THAT THE FEES SOUGHT TO BE LEVIED UNDER SECTION 234E OF THE ACT WAS NOT IN THE GUISE OF TAX SOUGHT TO BE LEVIED ON THE DEDUCTOR. THE PROVISIONS OF SECTION 234E OF THE ACT WERE HELD TO BE NOT ONEROUS ON THE GROUND THAT SECTION DOES NOT EMPOWER THE ASSESSING OFFICER TO CONDONE THE DELAY IN LATE FILING THE INCOME TAX RETURNS OR THAT NO APPEAL IS PROVIDED FROM ARBITRARY ORDER PASSED UNDER SECTION 234E OF THE ACT. THE HONBLE HIGH COURT HELD THAT THE RIGHT TO APPEAL WA S NOT A MATTER OF 17 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 RIGHT BUT WAS CREATURE OF STATUTE AND IF THE LEGISL ATURE DEEMS FIT NOT TO PROVIDE REMEDY OF APPEAL, SO BE IT. THE HONBLE HIG H COURT FURTHER HELD THAT A PERSON CAN ALWAYS APPROACH THE COURT IN EXTR AORDINARY EQUITABLE JURISDICTION UNDER ARTICLE 226/227 OF THE CONSTITUT ION AS THE CASE MAY BE. THE HONBLE HIGH COURT THEREFORE, OBSERVED THAT SIMPLY BECAUSE NO REMEDY OF APPEAL WAS PROVIDED FOR THE PROVISIONS OF SECTION 234E OF THE ACT, THE SAME CANNOT BE SAID TO BE ONEROUS AND SECT ION 234E OF THE ACT WAS HELD TO BE CONSTITUTIONALLY VALID. THE CONSTITU TIONAL VALIDITY OF PROVISIONS OF SECTION 234E OF THE ACT HAS ALSO BEEN UPHELD BY THE HONBLE RAJASTHAN HIGH COURT IN M/S. DUNDLOD SHIKSH AN SANSTHAN & ANR. VS. UNION OF INDIA AND ORS (SUPRA). 13. THE TRIBUNAL FURTHER OBSERVED AS UNDER:- 28. IN VIEW OF THE ABOVE SAID RATIO LAID DOWN BY T HE HONBLE BOMBAY HIGH COURT, THE CASE OF THE LEARNED CIT-DR BEFORE U S WAS THAT THERE IS NO MERIT IN THE PRESENT SET OF APPEALS FILED BY THE AS SESSEE AS THE HONBLE HIGH COURT HAS LAID DOWN THAT NO APPEAL IS PROVIDED FROM AN ORDER PASSED UNDER SECTION 234E OF THE ACT AND THE SAME M ERITS TO BE DISMISSED AT THE OUTSET. IN THIS REGARD, HE HAS RAI SED TWO ISSUES THAT (A) THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABL E AND ALSO (B) THERE IS NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THE ASSE SSING OFFICER IS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT BEFORE INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. THE LEARNED AUTHORIZED REPRESENTATIVE F OR THE ASSESSEE ON THE OTHER HAND, DREW OUR ATTENTION TO THE MEMORANDU M TO THE FINANCE BILL, 2015 WHILE INTRODUCING THE SAID CLAUSE (C) TO SECTION 200A(1) OF THE ACT. THE FINANCE BILL TOOK NOTE OF THE PROVISIONS O F CHAPTER XVIIB, UNDER WHICH THE PERSON DEDUCTING TAX I.E. DEDUCTOR WAS RE QUIRED TO FILE QUARTERLY TAX DEDUCTION AT SOURCE STATEMENT CONTAIN ING THE DETAILS OF DEDUCTION OF TAX MADE DURING THE QUARTER BY THE PRE SCRIBED DUE DATES. SIMILAR RESPONSIBILITY IS ON A PERSON REQUIRED TO C OLLECT TAX OF CERTAIN SPECIFIED RECEIPTS UNDER SECTION 206C OF THE ACT. I N ORDER TO PROVIDE EFFECTIVE DETERRENCE AGAINST THE DELAY IN FURNISHIN G TDS / TCS STATEMENTS, THE FINANCE ACT, 2012 INSERTED SECTION 234E OF THE ACT TO PROVIDE FOR LEVY OF FEES ON LATE FURNISHING OF TDS / TCS STATEMENTS. THE MEMO FURTHER TOOK NOTE OF THE FACT THAT THE FINANCE (NO.2) ACT, 2009 INSERTED SECTION 200A IN THE ACT, WHICH PROVIDED FO R FURNISHING OF TDS STATEMENTS FOR DETERMINING THE AMOUNT PAYABLE OR RE FUNDABLE TO THE DEDUCTOR. IT FURTHER TOOK NOTE THAT HOWEVER, AS SEC TION 234E OF THE ACT WAS INSERTED AFTER THE INSERTION OF SECTION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DOES NOT PROV IDE FOR DETERMINATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE T IME OF PROCESSING OF TDS STATEMENTS. IT WAS THUS, PROPOSED TO AMEND THE PROVISIONS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING O F TDS STATEMENTS UNDER SECTION 200A OF THE ACT. THE MEMO EXPLAINING THE FI NANCE BILL, 2015 VERY CATEGORICALLY HELD THAT CURRENTLY THERE DOES NOT EX IST ANY PROVISION IN THE 18 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 ACT TO ENABLE THE PROCESSING OF TCS RETURNS AND HEN CE, A PROPOSAL WAS MADE TO INSERT A PROVISION IN THIS REGARD AND ALSO THE POST PROVISION SHALL INCORPORATE THE MECHANISM FOR COMPUTATION OF FEES P AYABLE UNDER SECTION 234E OF THE ACT. THE FINANCE BILL FURTHER REFERS TO THE EXISTING PROVISIONS OF THE ACT I.E. AFTER PROCESSING OF TDS STATEMENT, INTIMATION IS GENERATED SPECIFYING THE AMOUNT PAYABLE OR REFUNDABLE. THIS I NTIMATION GENERATED AFTER PROCESSING OF TDS STATEMENT IS (I) SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE ACT; (II) APPEALABLE UNDER SECTI ON 246A OF THE ACT; AND (III) DEEMED AS NOTICE OF PAYMENT UNDER SECTION 156 OF THE ACT. THE FINANCE BILL FURTHER PROVIDED THAT INTIMATION GENER ATED AFTER THE PROPOSED PROCESSING OF TCS STATEMENT SHALL BE AT PAR WITH TH E INTIMATION GENERATED AFTER PROCESSING OF TDS STATEMENT AND ALSO PROVIDED THAT FAILURE TO PAY TAX SPECIFIED IN THE INTIMATION SHALL ATTRACT LEVY OF INTEREST AS PER PROVISIONS OF SECTION 220(2) OF THE ACT. FURTHER, A MENDMENTS WERE ALSO MADE IN RESPECT OF THE SCHEME OF PAYMENT OF TDS / T CS BY THE GOVERNMENT, DEDUCTOR / COLLECTOR WHICH ARE NOT RELE VANT FOR DECIDING THE ISSUE IN THE PRESENT APPEAL AND HENCE, THE SAME ARE NOT BEING REFERRED TO. THE FINANCE BILL FURTHER PROVIDED THAT THE AMENDMEN T WOULD TAKE EFFECT FROM 01.06.2015. 29. THE PERUSAL OF MEMO EXPLAINING THE PROVISION RE LATING TO INSERTION OF CLAUSE (C) TO SECTION 200A OF THE ACT CLARIFIES THE INTENTION OF LEGISLATURE IN INSERTING THE SAID PROVISION. THE PROVISIONS OF SEC TION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT, 2012, UNDER WHICH THE PROVISION WAS MADE FOR LEVY OF FEES FOR LATE FURNISHING TDS / TCS STATEMENTS. BEFORE INSERTION OF SECTION 234E OF THE ACT, THE FINANCE ( NO.2) ACT, 2009 HAD INSERTED SECTION 200A IN THE ACT, UNDER THE SAID SE CTION, MECHANISM WAS PROVIDED FOR PROCESSING OF TDS STATEMENTS FOR DETER MINING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR, UNDER WHICH THE PROVISION WAS ALSO MADE FOR CHARGING OF INTEREST. HOWEVER, SINCE THE PROVISIONS OF SECTION 234E OF THE ACT WERE NOT ON STATUTE WHEN TH E FINANCE (NO.2) ACT, 2009 WAS PASSED, NO PROVISION WAS MADE FOR DETERMIN ING THE FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME O F PROCESSING THE TDS STATEMENTS. SO, WHEN SECTION 234E OF THE ACT WAS IN TRODUCED, IT PROVIDED THAT THE PERSON WAS RESPONSIBLE FOR FURNISHING THE TDS RETURNS / STATEMENTS WITHIN STIPULATED PERIOD AND IN DEFAULT, FEES WOULD BE CHARGED ON SUCH PERSON. THE SAID SECTION ITSELF PRO VIDED THAT FEES SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTED AT SOURCE OR COLLECTED AT SOURCE. IT WAS FURTHER PROVIDED THAT THE PERSON RESPONSIBLE FO R FURNISHING THE STATEMENTS SHALL PAY THE SAID AMOUNT WHILE FURNISHI NG THE STATEMENTS UNDER SECTION 200(3) OF THE ACT. HOWEVER, POWER ENA BLING THE ASSESSING OFFICER TO CHARGE / LEVY THE FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RETURNS / STATEMENTS FILED BY A PERSON DID NOT EXIST WHEN SECTION 234E OF THE ACT WAS INSERTED BY THE FI NANCE ACT, 2012. THE POWER TO CHARGE FEES UNDER THE PROVISIONS OF SECTIO N 234E OF THE ACT WHILE PROCESSING THE TDS STATEMENTS, WAS DWELLED UPON BY THE LEGISLATURE BY WAY OF INSERTION OF CLAUSE (C) TO SECTION 200A(1) O F THE ACT BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015. ACCORDINGLY, WE HOLD T HAT WHERE THE ASSESSING OFFICER HAS PROCESSED THE TDS STATEMENTS FILED BY THE 19 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 DEDUCTOR, WHICH ADMITTEDLY, WERE FILED BELATEDLY BU T BEFORE INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01. 06.2015, THEN IN SUCH CASES, THE ASSESSING OFFICER IS NOT EMPOWERED TO CH ARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RE TURNS FILED BY THE DEDUCTOR. 30. THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUN DALIA VS. UNION OF INDIA (SUPRA) HAS UPHELD THE CONSTITUTIONAL VALIDIT Y OF SAID SECTION INTRODUCED BY THE FINANCE ACT, 2015 W.E.F. 01.06.20 15 BUT WAS NOT 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 M ERIT IN THE PLEA OF LEARNED CIT-DR THAT THE HONBLE BOMBAY HIGH COURT I N RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) HAS LAID DOWN T HE PROPOSITION THAT FEES UNDER SECTION 234E OF THE ACT IS CHARGEABLE IN THE CASE OF PRESENT SET OF APPEALS, WHERE THE ASSESSING OFFICER HAD ISSUED THE INTIMATION UNDER SECTION 200A OF THE ACT PRIOR TO 01.06.2015. 14. ANOTHER ASPECT OF THE ISSUE IS WHETHER THE AME NDMENT BROUGHT IN BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015 BY WAY OF INSER TION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT IS CLARIFICATORY OR IS PROSPECTI VE IN NATURE AND IS NOT APPLICABLE TO THE PENDING ASSESSMENTS. UNDOUBTEDLY, THE PROVISIONS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT, 2 012, UNDER WHICH THE LIABILITY WAS IMPOSED UPON THE DEDUCTOR IN SUCH CAS ES WHERE TDS STATEMENTS / RETURNS WERE FILED BELATEDLY TO PAY THE FEES AS PER SAID SECTION. HOWEVER, IN CASES, WHERE THE ASSESSEE HAS FAILED TO DEPOSIT THE SAID FEES, THEN IN ORDER TO ENABLE THE ASSESSING OFFICER TO COLLECT THE SAID FE ES CHARGEABLE UNDER SECTION 234E OF THE ACT, IT IS INCUMBENT UPON THE LEGISLATU RE TO PROVIDE MECHANISM FOR THE ASSESSING OFFICER TO CHARGE AND COLLECT SUCH FE ES. IN THE ABSENCE OF ENABLING PROVISIONS, THE ASSESSING OFFICER WHILE PR OCESSING THE TDS STATEMENTS, EVEN IF THE SAID STATEMENTS ARE BELATED , IS NOT EMPOWERED TO CHARGE THE FEES UNDER SECTION 234E OF THE ACT. THE AMENDME NT WAS BROUGHT IN BY THE 20 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 FINANCE ACT, 2015 W.E.F. 01.06.2015 AND SUCH AN AME NDMENT WHERE EMPOWERMENT IS GIVEN TO THE ASSESSING OFFICER TO LE VY OR CHARGE THE FEES CANNOT BE SAID TO BE CLARIFICATORY IN NATURE AND HENCE, AP PLICABLE FOR PENDING ASSESSMENTS. 15. THE HONBLE SUPREME COURT IN CIT VS. VATIKA TO WNSHIP PVT. LTD. (2014) 367 ITR 466 (SC) HAS EXPLAINED THE GENERAL PRINCIPL E CONCERNING RETROSPECTIVITY AND HAVE HELD THAT OF THE VARIOUS RULES GUIDING HO W A LEGISLATION HAS TO BE INTERPRETED, ONE ESTABLISHED RULE IS THAT UNLESS CO NTRARY INTENTION APPEARS, A LEGISLATION IS PRESUMED NOT TO BE INTENDED TO HAVE A RETROSPECTIVE OPERATION. IDEA BEHIND THE RULE IS THAT CURRENT LAW SHOULD GOV ERN CURRENT ACTIVITIES. THE MEMO EXPLAINING THE FINANCE BILL, 2015 VERY CLEARLY ALSO RECOGNIZES THAT AND REFERS TO THE CURRENT PROVISIONS OF SUB-SECTION (3) TO SECTION 200 OF THE ACT, UNDER WHICH THE DEDUCTOR IS TO FURNISH TDS STATEMEN TS. HOWEVER, AS SECTION 234E OF THE ACT WAS INSERTED AFTER INSERTION OF SEC TION 200A IN THE ACT, THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DID NOT PROVIDE FOR DETERMINATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT TH E TIME OF PROCESSING OF TDS STATEMENTS. IN THIS REGARD, IT WAS THUS, PROPOSED T O AMEND THE PROVISIONS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMPUTA TION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING O F TDS STATEMENTS UNDER SECTION 200A OF THE ACT. IN OTHER WORDS, THE ASSESS ING OFFICER IS EMPOWERED TO CHARGE FEES PAYABLE UNDER SECTION 234E OF THE ACT I N THE INTIMATION ISSUED AFTER INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01.06.2015. THE 21 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 LEGISLATURE ITSELF RECOGNIZED THAT UNDER THE EXISTI NG PROVISIONS OF SECTION 200A OF THE ACT I.E. PRIOR TO 01.06.2015, THE ASSESSING OFFICER AT THE TIME OF PROCESSING THE TDS STATEMENTS DID NOT HAVE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT AND IN ORDER TO COVER UP THAT, THE AMENDMENT WAS MADE BY WAY OF INSERTION OF CLAUSE (C) TO SECTION 200A OF T HE ACT. IN SUCH SCENARIO, IT CANNOT BE SAID THAT INSERTION MADE BY SECTION 200A( 1)(C) OF THE ACT IS RETROSPECTIVE IN NATURE, WHERE THE LEGISLATURE WAS AWARE THAT THE FEES COULD BE CHARGED UNDER SECTION 234E OF THE ACT AS PER FINANC E ACT, 2012 AND ALSO THE PROVISIONS OF SECTION 200A OF THE ACT WERE INSERTED BY FINANCE (NO.2) ACT, 2009, UNDER WHICH THE MACHINERY WAS PROVIDED FOR THE ASSE SSING OFFICER TO PROCESS THE TDS STATEMENTS FILED BY THE ASSESSEE. THE INSER TION CATEGORICALLY BEING MADE W.E.F. 01.06.2015 LAYS DOWN THAT THE SAID AMEN DMENT IS PROSPECTIVE IN NATURE AND CANNOT BE APPLIED TO PROCESSING OF TDS R ETURNS / STATEMENTS PRIOR TO 01.06.2015. 16. WE ALSO FIND SUPPORT FROM THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN WRIT APPEAL NOS.2663-2674/2015(T-IT) & ORS IN SRI FATHERAJ SINGHVI & ORS VS. UNION OF INDIA & ORS, WHEREIN THE HONBLE COURT HAD QUASHED THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT LEV YING THE FEES FOR DELAYED FILING OF THE TDS STATEMENTS UNDER SECTION 234E OF THE ACT. THE HONBLE HIGH COURT NOTES THAT THE FINANCE ACT, 2015 HAD MADE AME NDMENTS TO SECTION 200A OF THE ACT ENABLING THE ASSESSING OFFICER TO MAKE A DJUSTMENTS WHILE LEVYING FEES UNDER SECTION 234E OF THE ACT WAS APPLICABLE W .E.F. 01.06.2015 AND HAS 22 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 HELD THAT IT HAS PROSPECTIVE EFFECT. ACCORDINGLY, T HE HO NBLE HIGH COURT HELD THAT INTIMATION RAISING DEMAND PRIOR TO 01.06.2015 UNDER SECTION 200A OF THE ACT LEVYING SECTION 234E OF THE ACT LATE FEES IS NO T VALID. HOWEVER, THE HONBLE HIGH COURT KEPT OPEN THE ISSUE ON CONSTITUTIONAL VA LIDITY OF SECTION 234E OF THE ACT. WE HAVE ALREADY REFERRED TO THE DECISION OF HO NBLE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) IN T HIS REGARD, WHEREIN THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT HAS BEEN UPHELD. 17. ACCORDINGLY, WE HOLD THAT WHERE POWER IS BEING ENSHRINED UPON THE ASSESSING OFFICER TO CHARGE LATE FEES WHILE PROCESS ING THE TDS RETURNS W.E.F. 01.06.2015, SUCH PROVISION CANNOT HAVE RETROSPECTIV E EFFECT AS IT WOULD BE DETRIMENTAL TO THE CASE OF TAX PAYER. THE PROVISION UNDER WHICH A NEW ENABLING POWER IS BEING GIVEN TO CHARGE FEES UNDER SECTION 2 34E OF THE ACT WHILE PROCESSING TDS RETURNS / STATEMENTS AND SUCH POWER IS TO BE APPLIED PROSPECTIVELY. IN ANY CASE, THE PARLIAMENT ITSELF H AS RECOGNIZED ITS OPERATION TO BE PROSPECTIVE IN NATURE WHILE INTRODUCING CLAUSE ( C) TO SECTION 200A(1) OF THE ACT AND HENCE, CANNOT BE APPLIED RETROSPECTIVELY. 18. WE FURTHER HOLD THAT THE AMENDMENT TO SECTION 2 00A(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 APPEALS FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CHARGE FEES UND ER SECTION 234E OF THE ACT. HENCE, THE INTIMATION ISSUED BY THE ASSESSING OFFICER UNDER SECTION 200A OF THE ACT IN ALL THESE APPEALS DOES NOT STAND AND THE DEMAND RAISED BY WAY OF 23 ITA NOS.7396/DEL/2017 ALONG WITH 21 OTHER CASES ASSESSMENT YEARS 2013-14 TO 2015-16 CHARGING THE FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE INTIMATION ISSUED BY THE ASSESSING OFF ICER WAS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT A ND SUCH ADJUSTMENT COULD NOT STAND IN THE EYE OF LAW. 19. IN THE RESULT, ALL APPEALS OF DIFFERENT ASSESSE S ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST AUGUST, 2020. SD/- SD/- (DR. B.R.R. KUMAR) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / VICE PRESIDENT / DATED : 31 ST AUGUST, 2020 SHEKHAR, SR. P.S. / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / THE PR. CIT 5. 6. , , / DR, ITAT, DELHI / GUARD FILE. / BY ORDER , , , ASSISTANT REGISTRAR, ITAT, DELHI