Additional DIGP, Gurgaon V. DCIT, TDS, Gurgaon

ITA 7559/DEL/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7452 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 18-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Rule of consistency; Period of limitation; Retrospective amendment; Difference of opinion; Condonation of delay; TDS; Set aside
• Section: 10; 154; 201(1); 195; 234E; 200A; 201; 192; 246A; 2(A); 13; 272A; 22; 20

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SH. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.7559/DEL /2017 ASSESSMENT YEAR: 2015-16 ADDITIONAL DIGP CRPF CAMP, GROUP CENTRE, KADARPUR, GURGAON VS. DCIT TDS GURGAON (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY MS. RAKHI VIMAL, SR. DR. DATE OF HEARING 24.08.2020 DATE OF PRONOUNCEMENT 31.08.2020 2 ORDER PER R.K PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 20.09.2017 OF THE CIT(A)-2, GURGAON CONFIRMING THE LATE FILING FEE OF RS.1,79,300/- U/S. 234 E OF THE INCOME TAX ACT, 1961.. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE THEREFOR E, THE APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECOR D AND AFTER HEARING THE LD. DR. 3. THE LD. DR STRONGLY SUPPORTED THE ORDER OF THE C IT(A). SHE SUBMITTED THAT THE COMMON ISSUE IN THIS APPEAL UNDER CONSIDERATION IS LEVY OF FEES U/S 234E OF THE ACT AND THE CONTENTION THAT FEE U/S 234E IS NOT LEVIABLE BEFORE 01.06.2015, I.E., THE DATE WHEN CLAUSE (C) WAS INSERTED IN SECT ION 200A(1) FOR THE COMPUTATION OF THE SAID FEES AT THE TIME OF PROCESSING IS NOT C ORRECT. SHE SUBMITTED THAT THE DECISIONS OF THE TRIBUNAL RELIED IN THE CASE OF UDI T JAIN IS ALSO NOT APPLICABLE SINCE THE FACTS ARE LARGELY DISTINGUISHABLE. THE TRIBUNA L HAS NOT APPRECIATED THE RATIONALE OF THE AMENDMENTS BROUGHT IN THE FORM OF INSERTION OF SECTION 234E BY THE FINANCE ACT, 2012 AND INSERTION OF CLAUSE (C) T O SEC. 200A(1) OF THE I.T. ACT BY FINANCE ACT 2015 AS WELL AS THE DECISIONS OF VARIOU S HIGH COURTS INCLUDING JURISDICTIONAL HIGH COURT. THE RATIONALE BEHIND SUCH AMENDMENTS & EXPLANATORY NOTES ARE AVAILABLE IN THE RESPECTIVE MEMORANDUM TO THE CORRESPONDING FINANCE BILL WHICH HAVE NOT BEEN CONSIDERED BY HONBLE ITAT IN ITS ORDER DT.29.11.2019. 3 SHE DREW THE ATTENTION OF THE BENCH TO THE RELEVANT PROVISIONS OF I.T. ACT VIZ. SEC.234E, SEC.200A(L), 271H, MEMORANDUM TO FINANCE BILL, 2012, MEMORANDUM TO FINANCE BILL2015 ALONGWITH HOST OF CASE-LAWS DE CIDED IN FAVOUR OF REVENUE. SHE SUBMITTED THAT THE PREMISE /FOUNDATION OF THE D ECISION OF HONBLE KARNATAKA HIGH COURT HAS ALSO BEEN ANALYSED AND IS DISTINGUIS HABLE IN VIEW OF THE CASE-LAWS REFERRED TO. ACCORDINGLY SHE URGED THAT THE ABOVE D ECISION DATED. 29.11.2019 SHOULD NOT BE FOLLOWED IN THE NAME OF RULE OF CONSI STENCY IN THE CASE OF ABOVE MENTIONED APPEAL AS ALSO RES- JUDICATA IS NOT APPLIC ABLE IN INCOME-TAX PROCEEDINGS. 4. AS REGARDS RULE OF CONSISTENCY IS CONCERNED, S HE PLACED RELIANCE ON THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF KRISHAK BHARATI COOPERATIVE LTD VS DC1T [2012] 23 TAXMANN.COM 265 (DELHI) WHEREIN H ONBLE DELHI HC CONSIDERED THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F RADHASOAMI SATSANG VS CIT (1992] 60 TAXMAN 248(SC) AND HAS HELD THAT THE RULE OF CONSISTENCY SHOULD NOT CREATE ANOMALY. SHE ALSO RELIED ON THE FOLLOWING DE CISIONS:- (I) ROHITASAVA CHAND [2008] 306 ITR 242 (DELHI) 4 (II) ANUP SHARMA VS ADDL CIT, ITA NO.L61/CHD/2012, ORDER CLT.26.08.2014 OF ITAT, CHANDIGARH (III) MEERAJ ESTATE & DEVELOPERS VS DCIT [2014] 44 T AXRAANN.COM 431 (ITAT, AGRA) (IV) K K KHULLAR VS DCIT [2009] 116 ITD 301(DELHI) (V) DWARKADAS KESARDEO MORARKA VS CIT [1962] 44 ITR 529 (SC) 5. THE LD. DR DREW THE ATTENTION OF THE BENCH TO TH E MEMORANDUM TO THE FINANCE BILL, 2012 WHICH ELABORATES THE RATIONALE / EXPLANATORY NOTES WITH RESPECT TO AMENDMENTS BEING BROUGHT IN THE PROVISIONS OF TH E L T. ACT. THE RATIONALE FOR SUCH AMENDMENTS IN TDS/TCS RELATED PROVISIONS HAVE BEEN PROVIDED UNDER THE HEADING E. RATIONALIZATION OF TAX DEDUCTION AT SOU RCE (TDS) AND TAX COLLECTION AT SOURCE (TCS) PROVISIONS WHICH COMPRISE OF 6 PARAS . PARA (III) RELATES TO INSERTION OF SECTION 234E IN THE STATUTE & RELEVANT TO THE IS SUE UNDER CONSIDERATION. 6. SHE FURTHER DREW THE ATTENTION OF THE BENCH TO T HE MEMORANDUM TO THE FINANCE BILL, 2015 WHICH ELABORATES THE RATIONALE F OR INSERTION OF CLAUSE (C) IN SECTION 200A(I) IN THE STATUTE. PARA (I) & PARA (II I) UNDER THE HEADING L RATIONALIZATION OF MEASURES WHICH ARE RELEVANT TO THE ISSUE. 5 7. SHE ALSO DREW THE ATTENTION OF THE BENCH TO THE PROVISIONS OF SECTION 271H OF THE ACT WHICH WAS SIMULTANEOUSLY INSERTED WITH T HE PROVISIONS OF SECTION 234E W.E.F. 01.07.2012 BY THE FINANCE ACT, 2012. SHE SUB MITTED THAT THE APPLICABILITY & INTERPRETATION OF THE PROVISIONS OF SEC. 271H HAVE BEEN DISCUSSED BY VARIOUS HIGH COURTS IN ITS ORDER WHILE EXAMINING THE VALIDITY OF PROVISIONS OF SEC. 271 H. 8. THE LD. DR SUBMITTED THAT IN A NUMBER OF CASES, VARIOUS HIGH COURTS HAVE UPHELD THE VALIDITY OF PROVISIONS OF SECTION 234E W HICH PROVIDES FOR IMPOSITION OF FEE FOR DELAYED FILING OF STATEMENT OF TDS. HONBLE HIGH COURTS HAVE CATEGORICALLY HELD THAT THE PROVISIONS ARE NOT ULTRA VIRES AND NO T VIOLATIVE OF CONSTITUTION. THE ISSUE OF CHARGEABILITY OF FEE U/S 234E FOR THE PERI OD OF DELAY IN FILING OF TDS RETURN/STATEMENT BEFORE 01.06.2015 I.E. INSERTION O F CALUSE (C) TO SECTION 200A HAVE ALSO BEEN EXAMINED BY VARIOUS HIGH COURTS AND HAVE UPHELD THE CHARGEABILITY OF FEE U/S 234E AND THE ASSESSEES AP PEAL HAVE BEEN DISMISSED. IN PARTICULAR, THE DECISIONS OF HONBLE GUJARAT HIGH CO URT, MADRAS HIGH COURT & RAJASTHAN HIGH COURT MAY KINDLY BE REFERRED TO. IN S EVERAL CASES THE PERIOD UNDER CONSIDERATION BEFORE HONBLE HIGH COURTS INCLUDED T HE PERIOD PRIOR TO 01.06.2015. THE LD. DR RELIED ON THE FOLLOWING DECISIONS:- 6 (I) RAJESH KOURANI VS. UOI [2017] 83 TAXMANN.COM 137 (GUJARAT) (II) BISWAJIT DAS VS. UOI, [2019] 103 TAXMANN.COM 29 0 (DELHI)] (III) QATALYS SOFTWARE TECHNOLOGIES (P) LTD. VS. UO I, [2020] 115 TAXMANN.COM 345 (MADRAS) ] (IV) DUNLOD SHIKSHAN SANSTHAN VS. UOI [2015] 63 TAX MANN.COM 243 (RAJ)] (V) RASHMIKANT KUNDALIA VS. UOI [2015] 54 TAXMANN.C OM 200 (BOMBAY) (VI) LAKSHMINIRMAN BANGALORE PVT. LTD. VS. DCIT [20 15] 60 TAXMANN.COM 144 (KARNATAKA) (VII) SREE NARAYANA GURU SMARAKA SANGAM UPPER PRIMA RY SCHOOL VS. UOI [2017] 77 TAXMAIM.COM 244 (KERALA) (VIII) DR. AMRIT LAI MANGAL VS. UOI [2015] 62 TAXMA MI.COM 310 ( P& H) 9. THE LD. DR SUBMITTED THAT A HARMONIOUS AND CONJOI NT READING OF PROVISIONS OF SECTION 234E & MEMORANDUM TO FINANCE BILL, 2012, SECTION 271H, SECTION 200 A(L)(C), MEMORANDUM TO FINANCE BILL 2015 AND THE CA SE-LAWS ON THIS ISSUE MAKES FOLLOWING POINTS UNAMBIGUOUSLY CLEAR THAT: 7 A) THE FEE PAYABLE U/S 234E IS A CHARGING PROVISION AND THE AO HAS NO DISCRETION AT ALL WHEREAS SECTION 200A IS A MACHINE RY PROVISION ENABLING FOR PROCESSING OF TDS STATEMENTS, COMPUTATION OF ADJUSTM ENTS, FEES AND GENERATION OF INTIMATION ETC. HONBLE ITAT HAS NOT APPRECIATED THIS OBVIOUS DIFFERENCE IN ITS ORDER DT. 29.11.2019, REFERRED SU PRA. B) AS APPARENT FROM THE HEADING OF THE SECTION 200A 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 THE S TATUTE IT IS ABSOLUTELY CLEAR THAT THIS IS MERELY AN ENABLING SECTION TO COMPUTE/ PROCESS THE TDS STATEMENT. SECTION 234 E IS THE CHARGING SECTION IM POSING LIABILITY OF PAYMENT OF FEE BY THE DEFAULTING DEDUCTORS AS PER I TS 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 SECTION 234 E OF THE ACT FROM THE DATE OF ITS INTRO DUCTION IN THE STATUTE I.E. 01.07.2012. IT MAY BE NOTED THAT SECTION 234.E CREA TES AN AUTOMATIC CHARGE ON THE DEDUCTORS WHO HAVE DEFAULTED ON THIS COUNT & WHO ARE REQUIRED TO PAY THE FEE U/S 234E BEFORE DELIVERING SUCH BELATED TDS/TCS RETURNS /STATEMENTS IN ACCORDANCE WITH SUB-SECTION (3) OF S EC. 234E. BY AMENDMENT [INTRODUCTION OF CLAUSE 200A(L)(C)] THIS ADJUSTMENT WAS BROUGHT 8 WITHIN THE FOLD OF SECTION 200A OF THE IT ACT SO TH AT THE FEE U/S 234E CAN BE COMPUTED AT THE TIME OF PROCESSING & ISSUE OF INTIM ATION IN THE EVENT OF NON-PAYMENT OF FEE BEFORE DELIVERING SUCH BELATED T DS/TCS STATEMENTS BY THE DEFAULTING DEDUCTORS. ANY VIEW THAT INHIBITS TH E LEVY OF FEES UNDER SECTION 234 E DUE TO THE ABSENCE OF REGULATORY PROV ISION WILL TANTAMOUNT TO CHARGING SECTION YIELDING TO MACHINERY PROVISION WH ICH SHOULD NOT BE ALLOWED. THIS HAS NOT BEEN CONSIDERED BY HONBLE IT AT. C). SECTION 200A ENTAILS THE PROCEDURE FOR PROCEDUR E FOR PROCESSING OF TDS RETURNS. AMENDED SECTION OF 200A (L)(C), WITH EFFEC T FROM 01/06/2015, ENABLES COMPUTATION OF FEES CHARGEABLE U/S 234E UND ER THE PURVIEW OF 200A. THEREFORE, IF ANY TDS RETURN IS PROCESSED AFT ER 01/06/2015, THEN FEES CHARGEABLE U/S 234E IS REQUIRED TO BE COMPUTED AS P ER SECTION 200A(L)(C) BY VIRTUE OF THE FACT THAT THE CHARGING SECTION WAS AL READY EFFECTIVE SINCE 01/07/2012. SIMILAR WILL BE THE SCENARIO IF TDS RET URN WITH DEFAULT OF BEING DELAYED IS SUBMITTED AFTER 01/06/2015 AND PROCESSIN G IS DONE THEREAFTER. SINCE THE CHARGING SECTION WAS ALREADY EFFECTIVE ON THE DATE OF OCCURRENCE OF DEFAULT (I.E. THE DUE DATE FILING OF TDS RETURN ON WHICH TDS RETURN WAS NOT FILED), ANY TDS RETURN PROCESSED AFTER INTRODUC TION OF CLAUSE 200A(L)(C ) (I.E. GIVING EFFECT TO COMPUTATION OF FEES U/S 234E OF THE ACT) SHOULD INCLUDE 9 COMPUTATION OF FEES UNDER SECTION 234E. THIS ALSO N EEDS CONSIDERATION BY HONBLE ITAT. D). SECTION 200A SPEAKS ABOUT THE PROCESSING OF TDS RETURN/STATEMENTS AND THUS THE PROVISIONS STARTS ONLY AFTER THE FILING OF SUCH TDS RETURNS/STATEMENTS, WHETHER IN TIME OR DELAYED, WHE REAS SECTION 234E SEEKS TO LEVY THE FEES FOR THE PERIOD OF DELAY IN F ILING SUCH TDS RETURNS AND STATEMENTS. THEREFORE, IT MAY BE SEEN THAT THE CHAR GING PROVISIONS OF SECTION 234E PRECEDES THE OPERATION OF THE MACHINER Y PROVISIONS OF SECTION 200A. HONBLE ITAT HAS NOT APPRECIATED THIS OBVIOUS DIFFERENCE IN ITS ORDER DT. 29.11.2019, REFERRED SUPRA. E). THE FEE PAYABLE U/S 243E IS COMPENSATORY IN NAT URE TO THE DEPARTMENT FOR THE SERVICES PROVIDED FOR REGULARIZATION OF THE DELAY IN FILING OF A TDS RETURN/STATEMENT & IS NOT PENAL IN NATURE SINCE THE INCOME TAX DEPARTMENT HAS TO EXPEND EXTRA EFFORT & RESOURCES F OR PROCESSING DELAYED TDS RETURNS OR STATEMENTS AND ALSO THE ADDITIONAL B URDEN OF INTEREST TO BE PAID ON REFUNDS PAYABLE TO THE ASSESSEE ON WHOSE AC COUNT TAX DEDUCTION HAS BEEN MADE. [ AS HELD IN PARA 27 BY HONBLE DELH I HIGH COURT IN THE CASE OF BISWAJIT DAS VS. UOI, [2019] 103 TAXMANN.COM 290 (DELHI)] THAT THE FEE 10 IMPOSED U/S 234E OF THE ACT IS FOR ALL INTENTS & PU RPOSES A LATE FEE PAYABLE FOR ACCEPTING TDS STATEMENT/RETURN AT BELATED POINT OF TIME. THIS FACT HAS NOT BEEN CONSIDERED BY HONBLE ITAT IN ITS ORDER DT .29.11.2019. F). SECTION 271H OF THE ACT DOES NOT PROVIDE FOR A NY PENALTY FOR DELAYED FILING OF TDS RETURN/STATEMENT IF A PERSON PROVES T HAT HE HAS PAID THE TDS AMOUNT AND ALSO FILED TDS STATEMENTS ALONG WITH FEE AND INTEREST BEFORE EXPIRY OF A PERIOD OF 1 YEAR FROM THE PRESCRIBED TI ME. HOWEVER, THE DELAY IN FILING OF TDS RETURN/STATEMENT UPTO A PERIOD OF 1 Y EAR FROM THE PRESCRIBED TIME IS SUBJECT TO LEVY OF FEE U/S 234E. THE PENALTY LEVIABLE U/S 271H OF THE ACT IS NOT AUTOMATIC WHEREAS THE FEES LEVIABLE U/S 234E IS MANDATORY AND THE AO HAS NO DISCRETION. THESE ARE TWO INDEPENDENT PROVISIONS AND THE FINDINGS OF HONBLE HIGH COURTS IN THIS REGARD MAY KINDLY BE REFERRED TO. THE SAME HAVE NOT BEEN CONSIDERED BY HONBLE ITAT. G) BEFORE THE INSERTION OF CLAUSE (C) TO SECTION 20 0A(1), SECTION 200A DID NOT PROVIDE FOR COMPUTATION OF FEE PAYABLE U/S 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS THOUGH THE SAME WAS MANDATORILY LEVIABLE FOR THE DELAY IN FILING OF TDS STATEMENTS. IN THIS SENSE, INSERTION OF CLAUSE (C) TO SECTION 200A(1), IS ONLY AN ADDENDUM TO THE SECT ION TO PROVIDE FOR THE 11 MACHINERY PROVISION TO COMPUTE THE FEE PAYABLE U/S 234E AT THE TIME OF PROCESSING OF TDS STATEMENT AND THE SAME IS ENABLIN G FOR PROCESSES IN NATURE. THIS IS VERY MUCH EVIDENT ON PERUSAL OF THE MEMORANDUM TO THE FINANCE BILL 2015. THE SAME HAVE NOT BEEN CONSIDERE D BY HONBLE ITAT. 10. THE LD. DR SUBMITTED THAT AS PER VARIOUS JUDICIA L DECISIONS THE RATIO IS THAT THE LEGISLATIONS WHICH MODIFIED ACCRUED RIGHTS OR I MPOSED DISABILITIES WERE TO BE TREATED AS PROSPECTIVE IN NATURE UNLESS THEY WERE A CCOUNTING FOR AN OBVIOUS OMISSION, OR EXPLAINING A FORMER LEGISLATION. IN TH E PRESENT CASE, SECTION 200(3) PROVIDES FOR STATUTORY LIABILITY FOR DEPOSITING THE TDS AND FURNISHING THE REQUISITE STATEMENT WITH IN DUE TIME (THE SAID PROVISION INSE RTED BY FINANCE ACT 2004 W.E.F. 01/04/2005). SECTION 234 E WHICH PROVIDES FOR LEVY OF FEES IF ASSESSEE IS IN VIOLATION OF 200(3) OR 206C(3) OF THE ACT, IS INSER TED BY F.A.2012 W.E.F. 01/07/2012 .THEREFORE, SINCE BOTH THE SUBSTANTIVE LEGISLATION (SECTION IMPOSING STATUTORY LIABILITY AS WELL AS THE CHARGING SECTION FOR LEVY OF FEES IN CASE OF VIOLATION OF STATUTORY LIABILITY) WERE IN EFFECT MUCH EARLIER FR OM THE DATE OF INSERTION OF 200A(3) WHICH IS MERELY A MECHANICAL PROVISION PROV IDING FOR COMPUTATION, SUCH AMENDMENT IN PROCEDURAL SECTION SHOULD BE CONSIDERE D AS CLARIFICATORY IN NATURE. THE SAME HAVE NOT BEEN CONSIDERED BY HONBLE ITAT. 12 11. SHE SUBMITTED THAT IN THE CASE OF RAJESH KOURAN I, HONBLE GUJARAT HIGH COURT HAS CONSIDERED THE CHARGEABILITY OF FEE U/S 2 34E BEFORE 01.06.2015 WHEN CLAUSE (C) WAS INSERTED TO SECTION 200A(1) BY THE F INANCE ACT, 2015. HONBLE HIGH COURT ALSO CONSIDERED THE DECISION OF HONBLE KARNA TAKA HIGH COURT IN THE CASE OF FATEHRAJ SINGHVI & OTHERS. THE ISSUE HAS BEEN DISCUS SED IN GREAT DETAIL IN PARA 16 TO 21 AND HONBLE HIGH COURT HAS UPHELD THE LEVY OF FEE U/S 234E SINCE THE DAY THE PROVISIONS OF SECTION 234E WAS BROUGHT TO STATU TE AND EVEN PRIOR TO 01.06.2015 WHEN SECTION 200A(1) WAS AMENDED TO INCL UDE CLAUSE (C). HONBLE HIGH COURT HAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING MECHANISM FOR PROCESSING A STATEMENT OF I DS AND FOR MAKING ADJUSTMENTS WHEREAS SECTION 234E IS A CHARGING PROVI SION CREATING A CHARGE FOR LEVYING FEE FOR CERTAIN DEFAULTS IN FILING THE STAT EMENTS. W.E.F 01.06.2015 THE PROVISION OF SECTION 200A SPECIFICALLY PROVIDES FOR COMPUTING THE FEE PAYABLE U/S 234E. ON THIS ISSUE, SPECIFIC REFERENCE MAY KINDLY BE MADE TO PARA 18, 19 & 20 OF THE ORDER WHERE SPECIFIC FINDINGS OF HONBLE HIGH C OURT ARE RECORDED. THE CATEGORICAL FINDINGS OF HONBLE GUJARAT HIGH COURT, THOUGH CONSIDERED BY HONBLE ITAT IN ITS ORDER DT 29.11.2019, HAS NOT BEEN APPRE CIATED BY HONBLE TRIBUNAL IN RIGHT PERSPECTIVE WHEN READ IN CONJUNCTION WITH THE PROVISIONS, EXPLANATORY NOTES 13 AND ORDERS OF VARIOUS OTHER HIGH COURTS WHEREIN THE VALIDITY OF PROVISIONS OF SEC.234E HAS BEEN UPHELD. 12. SHE SUBMITTED THAT THE ISSUE OF LEGALITY OF INT IMATIONS / ORDERS PASSED U/S 200A LEVYING FEE U/S 234E FOR LATE FILING OF TDS/TC S RETURNS / STATEMENTS, PRIOR TO THE AMENDMENTS MADE BY FINANCE ACT2015 W.E.F. 01.0 6.2015, WAS CONSIDERED BY HONBLE RAJASTHAN HIGH COURT ALSO IN THE CASE OF DUN LOD SHIKSHAN SANSTHAN VS. UOI REPORTED IN [2015] 63 TAXMANN.COM 243 (RAJ)]. PA RA-8 OF THE ORDER IS RELEVANT & THE SAME IS REPRODUCED AS UNDER :- 8. IN THE PRESENT CASE, THE FEE WAS LEVIED UNDER S ECTION 200FOR LATE FILING OF THE RETURNS, PRIOR TO THE AMENDMENTS MADE BY THE FI NANCE ACT, 2015 WITH EFFECT FROM 1.6.2015 IN SECTIONS 200A, 246A AND 272 A PROVIDING FOR COMPUTATION AND APPEAL. WE DO NOT FIND THAT EVEN PR IOR TO THESE AMENDMENTS THE IMPOSITION OF FEE WAS ILLEGAL. WE DO NOT IN EXERCISE OF THE POWER UNDER ARTICLE 226 OF THE CONSTITUTION OF INDI A FIND ANY VALID REASONS OR JURISDICTION TO INTERFERE WITH THE COMPENSATORY FEE S IMPOSED FOR LATE FILING OF THE TDS RETURNS ON FLAT RATES. THE ABSENCE OF ANY PROVISION FOR CONDONATION OF DELAY AND THE APPEAL PRIOR TO AMENDMENTS ALSO DI D NOT MAKE THE IMPOSITION OF LATE FEES BY SECTION 234 E TO BE ULTR A VIRES. 13. THE FINDINGS OF HONBLE RAJASTHAN HIGH COURT HAS ALSO ESCAPED THE CONSIDERATION BY HONBLE ITAT. SHE ACCORDINGLY REQ UESTED THAT THE SAME MAY KINDLY BE CONSIDERED TO AVOID ANY MISCARRIAGE OF JUS TICE. 14 1. BLOCK DEVELOPMENT OFFICER VS. ACIT DATE OF ORDER 19 .06.2010. 2. SECONDARY SCHOOL PRINCIPAL VS. ACIT CPC- TDS (ITAT JAIPUR) ITA NO.964/JP/2019 DATE OF ORDER 24.06.2020 14. THE LD. DR SUBMITTED THAT ON A PERUSAL OF THE O RDER IT MAY BE NOTED THAT HONBLE KARNATAKA HIGH COURT SET-ASIDE THE ORDER LE VYING THE FEE U/S 234E HOLDING THAT THE AMENDMENTS IN SEC 200A, WHEREIN THE CLAUSE (C) WAS INSERTED, CANT HAVE ANY RETROSPECTIVE APPLICATION. HOWEVER, TWO IMPORTA NT POINTS CAN BE NOTED IN THE ORDER. FIRST HONBLE COURT DIDNT GAVE ANY SUCH FIN DINGS WHICH CAN BE SAID TO HAVE NEGATED THE MANDATORY CHARGING OF FEES U/S 234E FOR LATE FILING OF TDS/TCS RETURNS / STATEMENTS WHICH CREATES AN AUTOMATIC CHARGE ON T HE DEDUCTORS WHO HAVE DEFAULTED ON THIS COUNT & WHO ARE REQUIRED TO VOLUN TARILY PAY THE FEE U/S 234E BEFORE DELIVERING SUCH BELATED TDS/TCS RETURNS /STA TEMENTS IN ACCORDANCE WITH SUB-SECTION (3) OF SEC. 234E. SECOND, HONBLE KARNA TAKA HIGH COURT LEFT THE QUESTION OF CONSTITUTIONAL VALIDITY OF SEC.234E OPE N FOR CONSIDERATION BY THE DIVISION BENCH [PARA-26 OF THE ORDER] WHICH WAS EAR LIER DECIDED BY SINGLE MEMBER BENCH OF THE HIGH COURT UPHOLDING THE VALIDITY OF S EC. 234E IN THE CASE OF LAKSHMINIRMAN BANGALORE PVT. LTD. VS. DCIT [CITED S UPRA]. IT IS REITERATED AT THE COST OF REPETITION THAT THE ISSUE OF CONSTITUTIONAL VALIDITY OF SEC. 234E HAS BEEN UPHELD BY VARIOUS HIGH COURTS INCLUDING THE JURISDIC TIONAL HIGH COURT OF DELHI AND 15 PUNJAB & HARYANA HIGH COURT. RELEVANT CASE-LAWS HAVE BEEN MENTIONED ABOVE. THE DECISION OF HONBLE DELHI HIGH COURT BISWAJIT D AS VS. UOI, [CITED SUPRA] IS SUBSEQUENT TO THE DATE OF ORDER OF HONBLE KARNATAK A HIGH COURT IN THE CASE FATEHRAJ SINGHVI AND ACCORDINGLY, THE DECISION OF IN THE CASE FATEHRAJ SINGHVI WHICH HAS BEEN RELIED UPON BY HONBLE ITAT IN ITS O RDER DT.29.11.2019, DOES NOT HOLD GROUND FOR CONSIDERATION. 15. ON PERUSAL OF THE DECISIONS OF VARIOUS HIGH COU RTS WHEREIN THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SEC. 234E HAVE BEEN UPHELD, IT MAY BE SEEN THAT IN SEVERAL CASES THE PERIOD UNDER CONSIDERATIO N BEFORE HONBLE HIGH COURTS 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, 201 5. HAVING CONSIDERED THE PERIODS PRIOR TO 01.06.2015 & HAVING UPHELD THE VAL IDITY OF SEC. 234E BY HONBLE HIGH COURTS, IT CANT BE SAID THAT THE CONTROVERSY, BEING RAISED NOW, HAS ESCAPED THE EYES OF HONBLE HIGH COURTS AND THEREFORE THERE CANT BE ANY DOUBT THAT THERE IS ANY IOTA OF AMBIGUITY WITH RESPECT TO THE PERIOD OF DEFAULT FOR WHICH THE FEE U/S 234E IS CHARGEABLE. IN VIEW OF THE SAME AND CATEGOR ICAL FINDINGS OF HONBLE HIGH COURTS, THE FEE U/S 234E IS UNDOUBTEDLY LEVIABLE FO R THE DEFAULTS OF PERIOD IN FILING TDS/TCS STATEMENTS/RETURNS, EVEN FOR THE PERIOD PRI OR TO 01.06.2015 16 INDEPENDENT TO THE PROVISIONS OF SEC.200A(L) OF THE ACT. THE SAME HAVE NOT BEEN CONSIDERED BY HONBLE ITAT. 16. THE LD. DR ACCORDINGLY SUBMITTED THAT IN VIEW O F THE EXTANT PROVISIONS, CASE LAWS REFERRED TO ABOVE AND THE DISCUSSIONS SUPRA, T HE APPEAL OF THE ASSESSEES BE DISMISSED ON MERIT. SHE SUBMITTED THAT THE WRITTEN SUBMISSIONS MAY KINDLY BE INCORPORATED & REPRODUCED IN THE ORDER FOR KIND REF ERENCE. 17. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY LD. DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE HAVE ALSO CONS IDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND, THE ASSESSEE, IN THE INS TANT CASE HAS BASICALLY CHALLENGED THE LEVY OF LATE FEE U/S 234E BY THE AO WHICH HAS B EEN UPHELD BY THE CIT(A). 18. A PERUSAL OF THE ORDERS OF THE AO AND CIT(A) SH OW THAT THE TDS STATEMENTS WERE FILED BEFORE 01.06.2015, THEREFORE, THE QUESTI ON THAT HAS TO BE CONSIDERED IS AS TO WHETHER THE CIT(A) WAS JUSTIFIED IN CONFIRMING THE LEVY OF LATE FEE U/S 234E FOR DELAY IN FILING OF THE TDS STATEMENTS. WE FIND , IDENTICAL ISSUE HAD COME UP BEFORE THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF UDIT JAIN (SUPRA). THE TRIBUNAL, AFTER CONSIDERING THE DECISION OF THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF FATEHRAJ SINGHVI VS. UOI AS WELL AS THE DECI SION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UOI REP ORTED IN (2017) 83 17 TAXMANN.COM 137, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING 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 THE IN TIMATION U/S 200A OF THE ACT. THE CASE OF THE ASSESSEE BEFORE US IS THAT WH ERE THE LEGISLATURE HAS INSERTED CLAUSE (C) TO SECTION 200A(1) OF THE ACT W .E.F 01.06.2015, THEN IN RESPECT OF THE TDS STATEMENTS WHICH WERE FILED UNDE R 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 VS 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 DE CISION OF HONBLE GUJARAT HIGH COURT IN RAJESH KOURANI VS UNION OF INDI A (SUPRA) AND APPLYING THE PROPOSITION THAT WHERE THERE WAS DIFFERENCE OF OPINION BETWEEN HONBLE HIGH COURTS ON A PARTICULAR ISSUE AND IN TH E ABSENCE OF ANY DECISION RENDERED BY THE JURISDICTIONAL HIGH COURT, THEN THE DECISION IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED AS HELD 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 FI RST BUNCH OF APPEALS. THE SECOND BUNCH OF APPEALS IN THE CASE OF JUNAGADE HEALTHCARE PVT. LTD. IS AGAINST ORDER OF ASSESSING OFFICER PASSED UNDER SECTION 154 OF THE ACT REJECTING RECTIFICATIO N APPLICATION MOVED BY ASSESSEE AGAINST INTIMATION ISSUED LEVYING LATE FILING FEES CHARGED UNDER SECTION 234E OF THE ACT. THE CASE OF ASSESSEE BEFORE 18 US IS THAT THE ISSUE IS SQUARELY COVERED BY VARIOUS ORDERS OF TRIBUNAL, WHEREIN THE ISSUE HAS BEEN DECIDED IN RES PECT OF LEVY OF LATE FILING FEES UNDER SECTION 234E OF THE ACT, IN THE ABSENCE OF EMPOWERMENT BY THE ACT UPON ASSESSING OFFICER TO LE VY SUCH FEES WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT. THE TRIBUNAL VIDE ORDER DATED 21.09.2016 WITH LEAD ORDE R IN ITA NOS.560/PN/2016 & 561/PN/2016, 1018/PN/2016 TO 1023/PN/2016 IN MAHARASHTRA CRICKET ASSOCIATION VS. DCIT (CPC)- TDS, GHAZIABAD, RELATING TO ASSESSMENT YEARS 2013-14 AND 2014- 15 FOR THE RESPECTIVE 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 THER EOF, THE ASSESSING OFFICER WHILE PROCESSING THE TDS STATEMENTS / RETUR NS IN THE PRESENT SET OF APPEALS FOR THE PERIOD PRIOR TO 01.0 6.2015, WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE, THE INTIMATION ISSUED BY THE ASSESSING OFFICER UNDE R SECTION 200A OF THE ACT IN ALL THESE APPEALS DOES NOT STAND AND THE DEMAND RAISED BY WAY OF CHARGING THE FEES UNDER SECTION 23 4E OF THE ACT IS NOT VALID AND THE SAME IS DELETED. THE INTIMATION I SSUED BY THE ASSESSING OFFICER WAS BEYOND THE SCOPE OF ADJUSTMEN T PROVIDED UNDER SECTION 200A OF THE ACT AND SUCH ADJUSTMENT C OULD 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 RESEARCH FOUNDATION IN ITA NOS.1887 TO 1893/PUN/2016 AND OTH ERS RELATING TO ASSESSMENT YEARS 2013-14 AND 2014-15 VIDE ORDER DA TED 13.01.2017 AND ALSO IN SWAMI VIVEKANAND VIDYALAYA VS . DCIT(CPC)-TDS (SUPRA) AND MEDICAL SUPERINTENDANT RUR AL HOSPITAL VS. ACIT (CPC)-TDS IN ITA NOS.2072 & 2073/PUN/2017, ORDER DATED 19 21.12.2017, WHICH HAS BEEN RELIED UPON BY THE LEARN ED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. 13. THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE O F FATHERAJ SINGHVI VS. UNION OF INDIA (SUPRA) HAD ALSO LAID DO WN SIMILAR PROPOSITION THAT THE AMENDMENT TO SECTION 200A OF T HE ACT W.E.F. 01.06.2015 HAS PROSPECTIVE EFFECT AND IS NOT APPLIC ABLE FOR THE PERIOD OF RESPECTIVE ASSESSMENT YEARS PRIOR TO 01.0 6.2015. THE RELEVANT FINDINGS OF THE HONBLE 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 AN D 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 RETROACTIVE CHARACTER BUT, WHETHER SUCH PROVISION PROVIDES FOR A MERE REGULATORY MECHANISM OR CONFERS SUBSTANTIVE POWER U PON THE AUTHORITY WOULD ALSO BE A ASPECT WHICH MAY BE REQUI RED TO BE CONSIDERED BEFORE SUCH PROVISIONS IS HELD TO BE RET ROACTIVE IN NATURE. FURTHER, WHEN ANY PROVISION IS INSERTED FOR LIABILITY TO PAY ANY TAX OR THE FEE BY WAY OF COMPENSATORY IN NATURE OR FEE INDEPENDENTLY SIMULTANEOUSLY MODE AND THE MANNER OF ITS ENFORCEABILITY IS ALSO REQUIRED TO BE CONSIDERED AN D EXAMINED. NOT ONLY THAT, BUT, IF THE MODE AND THE MANNER IS NOT E XPRESSLY PRESCRIBED, THE PROVISIONS MAY ALSO BE VULNERABLE. ALL SUCH ASPECTS WILL BE REQUIRED TO BE CONSIDERED BEFORE ONE CONSID ERS REGULATORY MECHANISM OR PROVISION FOR REGULATING THE MODE AND THE MANNER OF RECOVERY AND ITS ENFORCEABILITY AS RETROACTIVE. IF AT THE TIME WHEN 20 THE FEE WAS PROVIDED UNDER SECTION 234E, THE PARLIA MENT ALSO PROVIDED FOR ITS UTILITY FOR GIVING PRIVILEGE UNDER SECTION 271H(3) THAT TOO BY EXPRESSLY PUT BAR FOR PENALTY UNDER SEC TION 272A BY INSERTION OF PROVISO TO SECTION 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 PROVIDE F OR MAKING OF DEMAND OF SUCH FEE UNDER SECTION 200A PAYABLE UNDER 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 INSERTIO N OF CLAUSE (C) TO (F) UNDER SECTION 200A(1) SHOULD BE TREATED AS R ETROACTIVE 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-SECTIO N (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND N OT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE D EMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORT ED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR 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 2 00A OF THE ACT WERE FOR THE PERIOD PRIOR TO 01.06.2015, THEN S AME WERE ILLEGAL 21 AND INVALID. VIDE PARA 27, IT WAS FURTHER HELD THAT THE IMPUGNED NOTICES UNDER SECTION 200A OF THE ACT WERE FOR COMP UTATION AND INTIMATION FOR PAYMENT OF FEES UNDER SECTION 234E O F THE ACT AS THEY RELATE FOR THE PERIOD OF TAX DEDUCTED AT SOURC E PRIOR TO 01.06.2015 WERE BEING SET ASIDE. 15. IN OTHER WORDS, THE HONBLE HIGH COURT OF KARNAT AKA EXPLAINED THE POSITION OF CHARGING OF LATE FILING FEES UNDER SECTION 234E OF THE ACT AND THE MECHANISM PROVIDED FOR COMPUTATION OF F EES AND FAILURE FOR PAYMENT OF FEES UNDER SECTION 200A OF T HE ACT WHICH WAS BROUGHT ON STATUTE W.E.F. 01.06.2015. THE SAID AMENDMENT WAS HELD TO BE PROSPECTIVE IN NATURE AND HENCE, NOT ICES ISSUED UNDER SECTION 200A OF THE ACT FOR COMPUTATION AND I NTIMATION FOR PAYMENT OF LATE FILING FEES UNDER SECTION 234E OF T HE ACT RELATING TO THE PERIOD OF TAX DEDUCTION PRIOR TO 01.06.2015 WER E NOT MAINTAINABLE AND WERE SET ASIDE BY THE HONBLE HIGH COURT. IN VIEW OF SAID PROPOSITION BEING LAID DOWN BY THE HONBLE HIGH COURT OF KARNATAKA (SUPRA), THERE IS NO MERIT IN OBSERVATIONS OF CIT(A) THAT IN THE PRESENT CASE, WHERE THE RETURNS OF TDS WERE FILED FOR EACH OF THE QUARTERS AFTER 1ST DAY OF JUNE, 2015 AND EVEN T HE ORDER CHARGING LATE FILING FEES WAS PASSED AFTER JUNE, 20 15, THEN THE SAME ARE MAINTAINABLE, SINCE THE AMENDMENT HAD COME INTO EFFECT. THE CIT(A) HAS OVERLOOKED THE FACT THAT NOTI CES 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 OF TAX DEDUCTED PRIOR TO 1ST DAY OF JUNE, 2015. THE SAME C ANNOT BE CHARGED BY ISSUE OF NOTICES AFTER 1ST DAY OF JUNE, 2015 EVEN WHERE THE RETURNS WERE FILED BELATEDLY BY THE DEDUCTOR AF TER 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 WH ILE PROCESSING 22 TDS RETURNS / STATEMENTS FOR THE PERIOD PRIOR TO 01 .06.2015 WAS NOT EMPOWERED TO CHARGE LATE FILING FEES UNDER SECT ION 234E OF THE ACT, EVEN IN CASES WHERE SUCH TDS RETURNS WERE FILE D BELATEDLY AFTER JUNE, 2015 AND EVEN IN CASES WHERE THE ASSESSING OF FICER PROCESSED THE SAID TDS RETURNS AFTER JUNE, 2015. ACCORDINGLY, WE HOLD THAT INTIMATION ISSUED BY ASSESSING OFFICER UNDER SECTIO N 200A OF THE ACT IN ALL THE APPEALS DOES NOT STAND AND THE DEMAN D RAISED BY CHARGING LATE FILING FEES UNDER SECTION 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 GUJ ARAT IN RAJESH KOURANI VS. UNION OF INDIA (SUPRA). ON THE OTHER HAN D, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS POIN TED OUT THAT THE ISSUE IS SETTLED IN FAVOUR OF ASSESSEE BY THE H ONBLE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI VS. UNIO N OF INDIA (SUPRA). SINCE WE HAVE ALREADY RELIED ON THE SAID R ATIO LAID DOWN BY THE HONBLE HIGH COURT OF KARNATAKA, THE CIT(A) HAS M IS-REFERRED TO BOTH DECISIONS OF HONBLE HIGH COURT OF KARNATAKA AND HONBLE HIGH COURT OF GUJARAT; BUT THE CIT(A) HAS FAILED 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'BLE SUPREME COURT IN CIT VS. M/S. VEGETABLE PRODUCTS LT D. (SUPRA), IN THE ABSENCE OF ANY DECISION RENDERED BY THE JURISDI CTIONAL HIGH COURT. THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KU NDALIA VS. UNION OF INDIA (2015) 54 TAXMANN.COM 200 (BOM) HAD DECIDED THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SECTION 23 4E OF THE ACT AND HAD HELD THEM TO BE ULTRA VIRES BUT HAD NOT DECIDED THE SECOND ISSUE OF AMENDMENT BROUGHT TO SECTION 200A OF THE A CT W.E.F. 01.06.2015. IN VIEW THEREOF, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF KARNATAKA AND PUNE BENCH OF TRIBUNAL IN SERIES OF CASES, WE DELETE THE LATE FIL ING FEES CHARGED 23 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 CIT(A) HAD DISMISSED APPEALS OF ASSESSEE BEING DELAYED FOR PER IOD OF DECEMBER, 2013 AND JULY, 2014. THE CIT(A) WHILE COM PUTING DELAY HAD TAKEN THE DATE OF INTIMATION UNDER SECTION 200A OF THE ACT AS THE BASIS, WHEREAS THE ASSESSEE HAD FILED APPEALS B EFORE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE A CT. THE CIT(A) HAD NOTED THAT RECTIFICATION APPLICATION WAS FILED IN FEBRUARY, 2018 WHICH WAS REJECTED BY CPC ON THE SAME DAY. THE CIT( A) WAS OF THE VIEW THAT THERE WAS NO MERIT IN CONDONATION OF DELA Y, WHEREIN APPEALS WERE FILED BEYOND THE PERIOD PRESCRIBED. TH E ASSESSEE HAD FILED APPEALS AGAINST THE ORDER PASSED UNDER SECTIO N 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 U NDER SECTION 154 OF THE ACT AND NOT FROM THE DATE OF ISSUE OF IN TIMATION. THUS, THERE IS NO MERIT IN THE ORDER OF CIT(A) IN DISMISS ING 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 (SUPRA) AND VIDE PARA 15, ORDER DATED 21.12.2017 IT WAS HEL D 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 SE CTION 200A(3) DATED 07-08-2014 AND COMPUTED THE DELAY IN FILING THE 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 24 SAID APPLICATION FOR RECTIFICATION UNDER SECTION 15 4 WAS FILED ON 08- 06-2017/09- 03-2017 IN THE RESPECTIVE YEARS. THE SAID APPLICATION WAS DECIDED BY THE ASSESSING OFFICER ON 09-06-2017. T HE 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. 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. 10. THE DELHI BENCH OF TRIBUNAL IN MEGHNA GUPTA VS A CIT (SUPRA) HAS ALSO LAID DOWN SIMILAR PROPOSITION AND HELD AS UNDE R:- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PE RUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS AS WE LL AS MATERIAL REFERRED TO BEFORE US. AT THE OUTSET, FROM THE PERUSAL OF THE RECTIFICATION ORDER U/S 200A GENERATED BY TDS ( CPC), IT IS NOTICED THAT THE TDS IN 26QB MENTIONS DATE OF FILIN G OF 'CHALLAN CUM STATEMENT' AS 5.4.2014, WHEREIN LATE FILING OF 'CHALLAN CUM STATEMENT' U/S 234E HAS BEEN LEVIED. THE ASSESSEE H AD PURCHASED THE PROPERTY ON 6.12.2013 I.E., RELEVANT TO THE ASSESSMENT YEAR 2014-15. SINCE ASSESSEE HAD PURCHASE D THE PROPERTY FROM EIGHT SELLERS AND THE PAYMENT TO EACH OF THE SELLER HAS BEEN MADE SEPARATELY FOR AN AMOUNT OF RS. 41,87 ,500/- AGGREGATING TO RS. 3,35,00,000/-, THE ASSESSEE' CON TENTION HAS BEEN THAT IT WAS NOT REQUIRED TO DEDUCT TDS, BECAUS E THE 25 PAYMENTS MADE TO EACH SELLER WAS LESS THAN THE PRES CRIBED LIMIT OF RS.50 LACS AND THEREFORE, PROVISION OF SECTION 1 94IA WAS NOT APPLICABLE. THE DEMAND HAS BEEN RAISED BY THE DEPAR TMENT U/S 200 IN TERMS OF FAILURE TO COMPLY WITH SECTION 200A , WHICH DEALS WITH THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200. FIRST OF ALL, SUB SECTION 3 OF SECTION 200 PRO VIDES THAT THE PERSON DEDUCTING ANY SUM IN ACCORDANCE WITH PROVISI ON OF CHAPTER XVII SHALL AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME, PREPARE SUCH STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED . PROVISION OF SECTION 200A PROVIDES THAT WHERE THE STATEMENT O F TAX DEDUCTION AT SOURCE HAS BEEN MADE BY THE PERSON DED UCTING ANY SUM U/S 200, THEN SUCH STATEMENT SHALL BE PROCESSED IN THE MANNER GIVEN THEREIN. CLAUSE (C) OF SECTION 200A HA S 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 WIT HIN 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) WHICH IN TURN PROVIDES THAT THE STATEMENT TO BE FILED AFTER THE P AYMENT OF TAX TO THE PRESCRIBED AUTHORITY. THE RELEVANT RULE 31A( 4A) PROVIDES THAT FOR FILING OF THE 'CHALLAN CUM STATEMENT' WITH IN SEVEN DAYS FROM THE DATE OF DEDUCTION. NOW HERE IN THIS CASE T HE DEMAND HAS BEEN RAISED PURELY ON THE GROUND THAT STATEMENT HAS NOT BEEN FURNISHED FOR THE TAX DEDUCTION AT SOURCE. AS STATED ABOVE, THE ASSESSEE HAS DULY DEPOSITED THE TAX NOT AT THE TIME OF PURCHASE ALBEIT ON 5.4.2014 AND ON THE SAME DATE, S TATEMENT 26 HAS ALSO BEEN FILED. THE RELEVANT PROVISION OF SECT ION 200(3) READ WITH RULE 31A (4A) ONLY REFERS TO FILING OF 'CHALLA N 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 CANN OT BE HELD THAT THERE IS ANY VIOLATION OF SECTION 200(3). IN ANY CA SE, THE LEVY OF FEE U/S 200A IN ACCORDANCE WITH THE PROVISION OF SE CTION 234E HAS COME INTO THE STATUTE W.E.F. 1.6.2015. SINCE TH E CHALLAN AND STATEMENT HAS BEEN FILED MUCH PRIOR TO THIS DATE, T HEREFORE, NO SUCH TAX CAN BE LEVIED U/S 200A. THIS HAS BEEN CLAR IFIED AND HELD BY HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHER AJ SINGHVI & ORS VS. UNION OF INDIA REPORTED IN (2016) 289 CTR 0602, WHEREIN THE LORDSHIP HAD MADE FOLLOWING OBSERVATION S :- '14. WE MAY NOW DEAL WITH THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE APPELLANTS. THE FIRST CONTE NTION FOR ASSAILING THE LEGALITY AND VALIDITY OF THE INTIMATI ON UNDER SECTION 200A WAS THAT, THE PROVISION OF SECTION 200A(1)(C), (D) AND (F) HAVE COME INTO FORCE ONLY WITH EFFECT FROM 1.6.2015 AND HENCE, THERE WAS NO AUTHORITY OR COMPETENCE OR JURISDICTIO N ON THE PART OF THE CONCERNED OFFICER OR THE DEPARTMENT TO COMPU TE AND DETERMINE THE FEE UNDER SECTION 234E IN RESPECT OF THE ASSESSMENT YEAR OF THE EARLIER PERIOD AND THE RETUR N FILED FOR THE SAID RESPECTIVE ASSESSMENT YEARS NAMELY ALL ASSESSM ENT YEARS AND THE RETURNS PRIOR TO 1.6.2015. IT WAS SUBMITTED THAT, WHEN NO EXPRESS AUTHORITY WAS CONFERRED BY THE STATUTE U NDER SECTION 200A PRIOR TO 1.6.2015 FOR COMPUTATION OF ANY FEE U NDER SECTION 234E NOR THE DETERMINATION THEREOF, THE DEMAND OR T HE 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 ASSESS EE HAD 27 FURNISHED THE STATEMENT IMMEDIATELY AFTER DEPOSITIN G ALL THE TAX WITHOUT ANY DELAY. ACCORDINGLY, THE DEMAND ON ACCOU NT OF 234E IS 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 INTEREST U/S 201(IA), THE SAME CANNOT BE CHARGED AS ADMITTEDLY N O ORDER U/S 201(1) HAS BEEN PASSED HOLDING THE ASSESSEE TO BE ' ASSESSEE IN DEFAULT' AND, THEREFORE, SUCH AN INTEREST IS ALSO D ELETED. 11. NOW COMING TO THE FACTS OF THE PRESENT CASE BEF ORE US, THE ASSESSEE, UDIT JAIN HAD DEDUCTED TAX AT SOURCE U/S 195 OF THE ACT AGAINST PURCHASE OF PROPERTY. THE TAX WAS DEDUCTED AT 18.0 5.2015 AND WAS EVEN PAID ON 18.05.2015, THOUGH THE RETURN IN FORM NO.27 A WAS FILED ON 23.06.2016. WE HOLD THAT SINCE THE PERIOD UNDER CO NSIDERATION IS FIRST QUARTER OF FINANCIAL YEAR 2015-16 I.E. PRIOR TO THE AMENDMENT TO SECTION 200A(1) OF THE ACT WHEREIN CLAUSE (C) WAS INSERTED W.E.F. 01.06.2015 AND SINCE THE ASSESSEE HAD ALREADY DEPOSITED THE TAX DE DUCTED AT SOURCE, ON THE SAME DAY OF DEDUCTION, THERE WAS REASONABLE CAU SE IN THE HANDS OF THE ASSESSEE IN NOT DEPOSITING THE RETURN IN FORM NO.2 7A AND THE SAID DEFAULT NEEDS TO BE CONDONED. EVEN OTHERWISE, FOLLOWING TH E RATIO LAID DOWN IN THE DECISIONS RENDERED TO IN THE PARAS ABOVE, THE J URISDICTIONAL ISSUE OF EXERCISE OF POWER BY THE ASSESSING OFFICER IN CHARG ING LATE FILING FEE U/S 234E OF THE ACT, SUFFERS FROM INFIRMITY AS CLAUSE ( C) TO SECTION 200(A)(1) OF THE ACT HAS BEEN MADE APPLICABLE SPECIFICALLY FROM THE DATE FROM 01.06.2015. SINCE THE PERIOD OF DEFAULT WAS BEFORE THE SAID DATE I.E. 01.06.2015, THERE IS NO MERIT IN CHARGING LATE FILI NG FEE U/S 234E OF THE ACT. AS WE HOLD THAT NO LATE FILING FEE IS TO BE CHARGED , THEN CONSEQUENT INTEREST CHARGED U/S 220(2) OF THE ACT ALSO DO NOT SURVIVE. 20. WE FIND, THE DELHI BENCH OF THE TRIBUNAL IN THE FOLLOWING DECISIONS ALSO HAVE HELD THAT NO FEE CAN BE LEVIED U/S 234E IN TER MS OF SECTION 200A WHERE THE 28 DATE OF FILING OF TDS STATEMENT AND DATE OF INTIMAT ION ARE MUCH PRIOR TO 01.06.2015:- I) PRAKASH INDUSTRIES LTD. VS. DCIT, ITA NOS.5865 T O 5869/DEL/2016, ORDER DATED 29.07.2019; II) M/S AJVIN INFOTECH PVT. LTD. VS. DCIT, ITA NO.23 05 & 2306/DEL/2017, ORDER DATED 04.03.2020; III) M/S D.D. MOTORS, HARYANA VS. DCIT, ITA NO.956/ DEL/2017, ORDER DATED 18.10.2019; AND IV) DISTRICT HEALTH & WELFARE SOCIETY VS. ITO, ITA NO.7473/DEL/2018, ORDER DATED 26.04.2019. 21. SO FAR AS THE VARIOUS DECISIONS RELIED ON BY LD . DR ARE CONCERNED, WE HAVE CAREFULLY GONE THROUGH ALL THOSE DECISIONS AND ARE OF THE OPINION THAT THESE CAN BE DIVIDED BROADLY INTO THREE CATEGORIES I.E. A) PROVISIONS OF SECTION 234 E ARE CONSTITUTIONALLY VA LID B) RULE OF CONSISTENCY IS NOT APPLICABLE AND C) LATE OF FEE U/S. 234 E IS LEVIABLE FOR DEFAULTS OF PERIOD IN FILING THE TDS/ TCS STATEMENTS/ RETURNS EVEN FOR THE PERIOD PRIOR T O 01-06-2015 29 21.1 SO FAR AS THE ARGUMENT OF THE LD. DR ON THE BA SIS OF VARIOUS DECISIONS INCLUDING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF BISWAJIT DAS (SUPRA) THAT PROVISIONS OF SECTION 234E ARE CONSTIT UTIONALLY VALID IS CONCERNED, NO DOUBT THE PROVISIONS OF SECTION 234 E HAVE BEEN HEL D TO BE CONSTITUTIONALLY VALID WHICH IS NOT THE DISPUTE BEFORE US. SO FAR AS THE A RGUMENT OF LD. DR ON RULE OF CONSISTENCY IS CONCERNED, THE SAME IN OUR OPINION I S NOT ABSOLUTE BUT IN THE PRESENT CASE WE ARE FACED WITH A SITUATION WHICH HA S BEEN CONSIDERED BY OUR COORDINATE BENCHES AND THERE IS NO SUBSEQUENT DEVEL OPMENT TO DEPART THERE FROM. MOREOVER, OUR COORDINATE BENCHES HAVE FOLLOW ED ONE APPROACH IN VIEW OF CONFLICTING DECISION OF DIFFERENT HIGH COURTS IN TH E ABSENCE OF ANY DECISION OF THE JURISDICTIONAL HIGH COURT. SO FAR AS THE LEVY OF F EE U/S. 234E FOR DEFAULTS OF PERIOD IN FILING TDS/TCS STATEMENTS / RETURNS EVEN FOR THE PERIOD PRIOR TO 1.06.2015 IS CONCERNED, AS MENTIONED EARLIER THERE ARE CONFLICTI NG DECISIONS BY DIFFERENT HIGH COURTS AND THERE IS NO DECISION ON THIS ISSUE BY TH E JURISDICTIONAL HIGH COURT. WHILE HONBLE KARNATAKA HIGH COURT IS IN FAVOUR OF THE ASSESSEE HOLDING THAT THE AMENDMENTS BROUGHT IN STATUTE W.E.F. 01.06.2015 ARE PROSPECTIVE IN NATURE AND HENCE NOTICES ISSUED U/S. 200 A OF THE ACT FOR COMP UTATION AND INTIMATION IN PAYMENT OF LATE FILING FEE U/S.234E OF THE ACT RELA TING TO THE PERIOD OF TAX DEDUCTION PRIOR TO 01.06.2015 WERE NOT MAINTAINABLE , THE HONBLE GUJARAT HIGH 30 COURT HAS DECIDED THE ISSUE AGAINST THE ASSESSEE AN D IN FAVOUR OF THE REVENUE. AFTER CONSIDERING THE ABOVE CONFLICTING DECISIONS, THE COORDINATE BENCHES OF THE TRIBUNAL ARE TAKING THE VIEW THAT WHEN THERE ARE CO NFLICTING DECISIONS, THE DECISION IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOW ED IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF VEGETABLES PRO DUCTS LIMITED (SUPRA). IN THE LIGHT OF THE ABOVE DISCUSSION WE HOLD THAT THE CIT( A) IS NOT JUSTIFIED IN CONFIRMING THE LATE FEE LEVIED BY THE AO U/S. 200 A R.W.S. 234 E SINCE THE DEFAULTS ARE PRIOR TO 1.06.2015. ACCORDINGLY WE SET ASIDE THE ORDER OF T HE LD. CIT(A) AND THE FEE LEVIED U/S. 234 E IS DIRECTED TO BE DELETED. 22. IN THE RESULT, THE APPEAL FILED BY THE A SSESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 31.08.2020. SD/- SD/- (SUDHANSHU SRIVASTAVA) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* DATE:- 31 .08.2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 31 DATE OF DICTATION 31.08.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.08.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 31.08.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 31.08.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 31.08.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 31.08.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31.08.2020 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER