SBI Branch Runaha, Bhopal V. Ward 1 (TDS), Bhopal

ITA 773/Ind/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1175 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Assessee Lawyers: MANISH LADDHA
• Keywords: Retrospective amendment
• Section: 201(1); 12

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER 1. ITA NOS.727 & 737/IND/2017 STATE BANK OF INDIA, GENDA CHOWK, BETUL(MP) TAN:BPLS10550B A.YS.: 2013-14 & 2014-15 2. ITA NOS.728,735, 736, 738 &739/IND/2017 STATE BANK OF INDIA, SHAHPUR, BETUL(MP) TAN:BPLS13456F A.YS.: 2014-15 & 2015-16 3. ITA NOS.782 TO 785/IND/2017 STATE BANK OF INDIA, MULTAI, BETUL(MP) TAN:BPLS06421C A.YS.: 2013-14 & 2014-15 4. ITA NOS.786 TO 789/IND/2017 STATE BANK OF INDIA, MULTAI, BETUL(MP) TAN:BPLS06421C A.YS.: 2013-14 & 2014-15 5. ITA NOS.770 TO 772/IND/2017 STATE BANK OF INDIA, KOLGAON, BETUL(MP) TAN:BPLS06725F A.Y.: 2013-14 SBI GROUP 2 6. ITA NOS.619 TO 624/IND/2018 STATE BANK OF INDIA, PRABHATPATTAN, BETUL(MP) TAN: BPLS06420B A.YS.: 2013-14 & 2014-15 7. ITA NOS.625 TO 628/IND/2018 STATE BANK OF INDIA, GANDHI CHOWK, MULTAI BETUL(MP) TAN: BPLS11814F A.YS.: 2014-15 8. ITANO.732/IND/2017 STATE BANK OF INDIA, ATHNER, BETUL(MP) TAN: BPLSO9582G A.Y.: 2013-14 9. ITA NOS.729 TO 731/IND/2017 STATE BANK OF INDIA, KOH-E-FIZA,BHOPAL(MP) TAN: BPLSO5032G A.Y.: 2013-14 10. ITA NOS.733 TO 734/IND/2017 STATE BANK OF INDIA, KOH-E-FIZA,BHOPAL(MP) TAN: BPLSO5032G A.Y.: 2013-14 11. ITA NOS.773 TO 776/IND/2017 STATE BANK OF INDIA, RUNAHA, BHOPAL(MP) TAN: BPLS11760A A.Y.: 2013-14 VS. WARD -2/1(TDS)/DCIT(TDS), BHOPAL SBI GROUP 3 & 1. ITA NO.517/IND/2017 STATE BANK OF INDIA, KURWAI, VIDISHA(MP) TAN: BPLS11759G A.Y.: 2012-13 2. ITA NOS.518 & 519/IND/2017 STATE BANK OF INDIA, UDAIPURA, RAISEN(MP) TAN: BPLS09615E A.YS.: 2012-13 & 2013-14 3. ITA NOS.520 & 521/IND/2017 STATE BANK OF INDIA, SOHAGPUR, HOSANGABAD(MP) TAN: BPLS09615E A.YS.: 2012-13 & 2013-14 4. ITA NOS.522 & 523/IND/2017 STATE BANK OF INDIA, DHANDIA, RAISEN(MP) TAN: BPLS07012F A.YS.: 2012-13 & 2013-14 5. ITA NOS.524 & 525/IND/2017 STATE BANK OF INDIA, ADB PIPARIYA, HOSANGABAD(MP) TAN: BPLS06555D A.YS.: 2012-13 & 2013-14 6. ITA NOS.526 & 527/IND/2017 STATE BANK OF INDIA, BUDNI, SEHORE(MP) TAN: BPLS09654B A.YS.: 2013-14 & 2014-15 7. ITA NOS.528 & 529/IND/2017 STATE BANK OF INDIA,ADB BABAI, HOSANGABAD(MP) TAN: BPLS07008B A.YS.: 2013-14 & 2014-15 SBI GROUP 4 8. ITA NOS.530 & 531/IND/2017 STATE BANK OF INDIA, BAKTARA, SEHORE(MP) TAN: BPLS06131G A.YS.: 2012-13 & 2013-14 9. ITA NO.532 /IND/2017 STATE BANK OF INDIA, ICHHAWAR, SEHORE(MP) TAN: BPLS10312B A.Y.: 2013-14 10.ITA NOS.533 & 534/IND/2017 STATE BANK OF INDIA, GAIRATGANJ, RAISEN(MP) TAN: BPLS09932G A.YS.: 2012-13 & 2013-14 VS. DCIT, CPC (TDS), GHAJIABAD APPELLANT S BY SHRI SUMIT NEMA, SR. ADV. & SHRI MANISH LADDHA, CA, RESPONDENT BY SHRI R.P. MOURYA, SR. DR DATE OF HEARING: 08.11.2018 DATE OF PRONOUNCEMENT: 13 .11.2018 / O R D E R PER BENCH: THE ABOVE CAPTIONED BUNCH OF 56 APPEALS ARE AT THE INSTANCE OF ASSESSEE AND DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX(APPEALS, BHOPAL, (IN SHORT CIT(A)),. AS THE ISSUE IS RAISED IN ALL THESE APPEALS ARE SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOS ED SBI GROUP 5 OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THESE BUNCH OF APPEALS ARE BEING REPRESENTED BY TW O AUTHORIZED REPRESENTATIVES NAMELY, SHRI SUMIT NEMA, SR. ADVOCATE AND SHRI MANISH LADDHA, CA. IT WAS MUTUALLY DECIDED THAT MR. SUMIT NEMA, SR. ADVOCATE SHALL PLEAD O N THE COMMON ISSUE RAISED IN THESE BUNCH IN APPEALS. FROM PERUSAL OF THE GROUNDS WE FIND THAT ONLY ONE ISSUE NEEDS TO BE ADJUDICATED AS TO WHETHER THE REVENU E AUTHORITIES WERE JUSTIFIED IN LEVYING THE LATE FEES U /S 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DED UCTED AT SOURCE U/S 200A OF THE ACT ( BEFORE THE AMENDMENT WAS BROUGHT IN W.E.F. 01.06.2015 IN THE PROVISIONS OF S ECTION 200A OF THE ACT). 3. BRIEF FACTS COMMON IN ALL THESE APPEALS ARE THAT THE APPELLANT WAS REQUIRED TO FILE THE STATEMENT OF TAX DEDU CTED AT SOURCE FOR THE RESPECTIVE QUARTER BUT FAILED TO DO S O WITHIN THE DUE DATE PRESCRIBED IN THE LAW FOR FILING SUCH QUARTER TDS RETURNS. AS PER THE PROVISIONS OF SECTION 234E OF THE ACT, FEE FOR DEFAULT IN FURNISHING THE STATEME NT IS LEVIABLE IF THE STATEMENT OF TDS ARE NOT DELIVERED WIT HIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 O R THE PROVISO TO SUB-SECTION (3) OF SECTION 206C OF THE A CT. SBI GROUP 6 4. THE REVENUE AUTHORITIES HAVE CHARGED THE LATE FEES FOR DEFAULTING IN FURNISHING THE STATEMENT IN THE PROCESS ING OF STATEMENT OF TAX DEDUCTED AT SOURCE U/S 200A OF THE A CT. AGAINST THE LEVY OF LATE FEE U/S 234E IN THE STATEMENT PROCESSED U/S 200A OF THE ACT, APPEAL WAS PREFERRED BY THE ASSESSEE FOR RESPECTIVE QUARTERS FOR THE RESPECTIVE ASSESSMENT YEARS BEFORE LD. CIT(A) PLEADING THAT BEFOR E THE AMENDMENT WAS BROUGHT IN BY THE FINANCE ACT, 2015 W.E .F. 01.06.2015, THE REVENUE AUTHORITIES WERE NOT HAVING THE POWERS TO LEVY THE LATE FEES U/S 234E OF THE ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 5. HOWEVER, ASSESSEE FAILED TO SUCCEED IN ALL THESE 56 APPEALS BEFORE LD. CIT(A) AND NOW THE ASSESSEE IS IN APP EAL BEFORE THE TRIBUNAL RAISING THE ABOVE REFERRED COMMON ISSUE. 6. AT THE OUTSET, SHRI SUMIT NEMA, SENIOR COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE COMMON ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DE CISIONS OF THE COORDINATE BENCH: 1. MENTOR INDIA LIMITED VS. DCIT (ITANO.738/JP/2016 ORDER DATED 16.12.2016) 2. SUDERSHAN GOYAL VS. DCIT (TDS) (ITANO.442/AGRA/201 7 ORDER DATED 09.04.2018) SBI GROUP 7 3. STATE BANK OF INDIA, GWALIOR VS. CIT(A) (ITANO.03/AG/2018 ORDER DATED 31.05.2018.) 7. LD. SENIOR COUNSEL FURTHER SUBMITTED THAT IN THE ABOVE REFERRED DECISIONS OF THE TRIBUNAL, JUDGMENTS OF HON 'BLE HIGH COURT OF KARNATAKA IN THE CASE OF FATEHRAJ SINGHVI V S. UOI (2016) 73 TAXMANN.COM 252 (KARN) (HC) FAVOURING TH E ASSESSEE AND THE JUDGMENT OF HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF RAJESH KAURANI VS. UOI (2017) 83 TAXMANN.COM 137 (GUJ) HELD AGAINST THE ASSESSEE WERE DULY CONSIDERED AND THEREAFTER FOLLOWING THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF CIT VS. VATIKA TOWN SHIP PVT. LTD. (2014) 367 ITR 466(SC) AND THE JUDGMENT OF APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. (1973) 88 ITR 192(SC) HON'BLE TRIBUNAL TOOK A VIEW THAT IF TH ERE IS A CLEAVAGE OF OPINION BETWEEN DIFFERENT COURTS ON AN I SSUE THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOW ED. ACCORDINGLY, IN THE ABOVE REFERRED DECISIONS OF THE TRIBUNAL THE VIEW FAVOURING THE ASSESSEE TAKEN BY THE HON'BLE H IGH COURT OF KARNATAKA IN THE CASE OF FATEHRAJ SINGHVI(SUPR A) HAS BEEN FOLLOWED HOLDING THAT AMENDMENT BROUGHT IN W.E.F. 01.06.2015 IN SECTION 200A OF THE ACT IS PRO SPECTIVE IN NATURE, THEREFORE, NO COMPUTATION FOR FEE FOR DEMAN D OR SBI GROUP 8 INTIMATION U/S 234E OF THE ACT COULD HAVE BEEN MADE FO R TDS DEDUCTED IN RESPECTIVE OF STATEMENTS PREPARED/PROCURED PRIOR TO 01.06.2015 AND PROCESSED U/S 200A OF THE ACT. 8. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) FAILE D TO CONTROVERT THE SUBMISSIONS MADE BY MR. SUMIT NEM A, SR. COUNSEL FOR THE ASSESSEE. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE COMMON ISSUE RAISED IN ALL THESE BUNCHES OF APPEALS IS THAT WHTHER THE LD. CIT(A ) WAS JUSTIFIED IN CONFIRMING THE LEVY OF LATE FEE U/S 234 E OF THE ACT IN THE STATEMENT OF TAX DEDUCTED AT SOURCE PROCES SED U/S 200A OF THE ACT, EVEN WHEN THE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 PAVED THE WAY FOR LEVYING THE FEE U/S 234E OF THE ACT IN THE STATEMENT PROCESSED U/S 200A OF THE ACT. 10. WE FIND THAT THE ABOVE ISSUE HAS CONSISTENTLY BEI NG ADJUDICATED BY THE COORDINATE BENCH OF THE TRIBUNAL AND CONSISTENT VIEW HAS BEEN TAKEN THAT THE AMENDMENT BROUGHT IN THE FINANCE ACT 2015 W.E.F. 01.06.2015 IN CLAUSE (C),(D) & (E) OF SUB-SECTION (1) OF SECTION 2 00A OF THE ACT ARE PROSPECTIVE IN NATURE, THEREFORE, FEE U/S 234 E SBI GROUP 9 CANNOT BE LEVIED IN THE STATEMENT PROCESSED U/S 200A UP TO 31.05.2015. 11. COORDINATE AGRA BENCH IN THE CASE OF SUDARSHAN GOYAL (SUPRA) ADJUDICATING VERY SAME ISSUE OBSERVED AS FOLLOWS : THE ISSUE INVOLVED IN THIS APPEAL IS AS TO WHETHER LATE FILING FEE U/S 234E OF THE IT ACT HAS RIGHTLY BEEN CHARGED IN THE INTIMATION DATED 10.11.2013 ISSUED U/S 200 A OF THE ACT WHILE PROCESSING THE TDS RETURNS/STATEMENT, THE ENABLING CLAUSE (C) HAVING BEEN INSERTED IN THE SECTION W.E.F. 01.0 6.2015. BEFORE 01.06.2015, THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U /S 234E. AS SUCH, AS PER THE ASSESSEE, IN RESPECT OF TDS STATEM ENT FILED FOR A PERIOD PRIOR TO 01.06.2015, NO LATE FEE COULD BE LEVIED IN THE INTIMATION ISSUED U/S 200 A OF THE ACT . 3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTER AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UOI ', 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SOURCE AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) H AS HELD THAT THIS DECISION WAS I.T.A NO. 442/AGRA/2017 & S.A. NO . 01/AGRA/2018 DELIVERED AFTER CONSIDERING NUMEROUS I TAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KA URANI' (SUPRA) HOLDS THE FIELD. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI FAT EHRAJ SINGHVI AND OTHERS VS.UOI', 73 TAXMANN.COM 252 (KER), AS AL SO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISS UE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TA KEN INTO CONSIDERATION BY THE HON'BLE GUJARAT HIGH COURT WHI LE PASSING 'RAJESH KAURANI' (SUPRA). HOWEVER, WHILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INTO CONSIDERATION THE SE TTLED LAW THAT SBI GROUP 10 WHERE THERE IS A CLEAVAGE OF OPINION BETWEEN DIFFER ENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESS EE NEEDS TO BE FOLLOWED. IT HAS SO BEEN HELD BY THE HON'BLE SUP REME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD .', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECISION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HIGH COURT QUA THE A SSESSEE. 5. IN 'SHRI FATEHRAJ SINGHVI AND OTHERS' (SUPRA) IT HAS BEEN HELD, INTER ALIA, AS FOLLOWS: '22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A CAN B E READ AS HAVING PROSPECTIVE EFFECT AND NOT HAVING RETROACTIVE CHARA CTER OR EFFECT. RESULTANTLY, THE DEMAND UNDER SECTION 200A FOR COMP UTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER UNDER SE CTION 200A BY THE RESPONDENT FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. HOWEVER, WE MAKE IT CLEAR T HAT, IF ANY DEDUCTOR HAS ALREADY PAID THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESAID VIEW WILL NOT PER MIT THE DEDUCTOR TO REOPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROTEST.' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SH RI FATEHRAJ SINGHVI AND OTHERS' (SUPRA), 'SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BENCH OF THE TRIBU NAL, AND 'SHRI KAUR CHAND JAIN VS. DCIT, CPC (TDS) GHAZIABAD ', ORDER DATED 15.09.2016, IN ITA NO.378/ASR/2015, FOR A.Y. 2012-13, I.T.A NO. 442/AGRA/2017 & S.A. NO. 01/AGRA/2018 THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIFIED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CA NCELLED. SBI GROUP 11 12. SIMILARLY COORDINATE JAIPUR BENCH IN THE CASE OF M/ S. MENTOR INDIA LTD. (SUPRA) TOOK THE SAME VIEW FAVOURING THE ASSESSEE OBSERVING AS FOLLOWS : 6. NOW THE ASSESSEE IS IN APPEAL BEFORE US. IN IT A NO. 438/JP/2016, THE ONLY EFFECTIVE GROUND IS AGAINST C ONFIRMATION OF LATE FILING FEE OF RS. 48,402/'; CHARGED BY THE A.O. U/S 234E OF THE ACT. IN THIS REGARD, THE LD. AR OF THE ASSES SEE HAS REITERATED THE ARGUMENTS AS MADE IN THE WRITTEN SUB MISSIONS AND HAS FURTHER SUBMITTED THAT THE ISSUE IS NO MORE RES-INTEGRA. HE PLACED RELIANCE ON THE DECISION OF THE ITAT, AHM ADABAD DECISION IN THE CASE OF PERFECT CROPSCIENCE PVT. LT D. VS DCIT IN ITA NO. 2957 TO 2963/AHD/2015 AND THE DECISION OF T HE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHV I & ORS. VS UNION OF INDIA & DRS. (2016) 289 CTR (KAR) 602. 7. ON THE CONTRARY, THE ID DR HAS OPPOSED THE SUBM ISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. SHE RELIED ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COU RT RENDERED IN THE CASE OF DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (2015) 63 TAXMANN.COM 243 (RAJ.). 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND AL SO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. RECENT LY THE COORDINATE BENCH OF JAIPUR ITAT IN THE CASE OF M/S. SANDEEP JHANWAR ADVISORY SERVICES PVT. LTD. VS. THE TDS CPC , GAZIABAD IN ITA NO. 722 & 723/JP/2016 FOR THE A.Y. 2013-14 / Q-3 & 4 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY O BSERVING AS UNDER:- '3.5. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE CA SE LAWS RELIED UPON BY THE LD. COUNSEL. WE FIND MERIT INTO THE CONTENTION OF LD. COUNSEL THAT HE JURISDICTIONAL HIGH COURT HA S DECIDED THE SBI GROUP 12 VALIDITY OF SECTION 234E , BUT HAS NOT DECIDE THE ISSUE OF POWER OF AO FOR LEVY OF TAX UNDER SECTION 234E IN THE JUDGMENT RENDERED IN THE CASE OF M/S. DUNDLOD SHIKSHAN SANSTHAN AND O THERS (SUPRA) AS RELIED BY LD. CIT (A). WE HAVE CONSIDERE D THE RECENT DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CAS E OF SHRI FATHERAJ SINGHVI & ORS (SUPRA) WHEREIN THE ISSUE OF LEVY OF FEES U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01 .06.2015 HAS BEEN CATEGORICALLY DISCUSSED BY THE HON'BLE HIG H COURT AND IN PARA 24 OF THE SAID ORDER IT WAS HELD THAT 'NO D EMAND FOR FEE U/S 234E CAN BE MADE IN INTIMATION ISSUED FOR TDS D EDUCTED U/S 200A BEFORE GEETA STAR HOTELS & RESORTS PVT. LT D. VS. DCIT 01.06.2015'. WE HAVE ALSO GONE THROUGH THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHIP PVT. LTD . (SUPRA) WHEREIN THE HON'BLE APEX COURT HAS DISCUS SED IN DETAIL THE GENERAL PRINCIPLE OF CONCERNING RETRO SPECTIVELY AND HELD THAT UNLESS CONTRARY INTENTION APPEARS, A LEGI SLATION IS PRESUMED NOT TO HAVE A RETROSPECTIVE OPERATION. RES PECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF HON'BLE SUPREME CO URT AND HON'BLE KARNATAKA HIGH COURT, WE SET ASIDE THE ORDE R OF LD. CIT (A) AND DIRECT THE AO TO DROP THE DEMAND RAISED OF RS. 4,200/- U/S 234E ON STATEMENTS PROCESSED U/S 200A BEFORE 01.06.2015. THUS GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED.' THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F DUNDLOD SHIKSHAN SANSTHAN VS. UNION OF INDIA (SUPRA) HAS DE CIDED THE ISSUE OF VIRES OF SECTION 234E OF THE ACT. THE HON' BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. V S UNION OF INDIA & ORS. (SUPRA) HAS HELD THAT THE DEMAND U/S 2 00A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE U /S 234E COULD NOT BE MADE IN PURPORTED EXERCISE OF POWER U/ S 200A FOR THE PERIOD OF THE RESPECTIVE ASSESSMENT YEARS PRIOR TO 1ST JUNE, 2015. WHEN THE INTIMATION OF THE DEMAND NOTICES U/S 200A IS HELD TO BE WITHOUT AUTHORITY OF LAW SO FAR AS IT RE LATES TO COMPUTATION AND DEMAND OF FEE U/S 234E, THE QUESTIO N OF FURTHER SCRUTINY FOR TESTING THE CONSTITUTIONAL VAL IDITY OF SECTION 234E WOULD BE RENDERED AS AN ACADEMIC EXERCISE. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F DUNDLOD SHIKSHAN GEETA STAR HOTELS & RESORTS PVT. LTD. VS. DCIT SANSTHAN VS. UNION OF INDIA (SUPRA) HAS ALSO CONSID ERED THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF SBI GROUP 13 RASHMIKANT KUNDALIA VS. UNION OF INDIA (2015) 229 T AXMAN 596 WHEREIN THE HON'BLE HIGH COURT HAS DECIDED THE NATURE OF DEMAND. THE HON'BLE HIGH COURT HAS HELD THAT SECTIO N 234E OF THE ACT IS NOT PUNITIVE IN NATURE BUT A FEE WHICH I S A FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPARTMENT HAS TO P ROVE DUE TO THE LATE FILING OF THE TDS STATEMENTS. HENCE FROM B OTH THE DECISIONS RELIED UPON BY THE LD. DR, THE ISSUE OF P OWER OF IMPOSING LATE FEE IS NOT DECIDED BUT THE HON'BLE KA RNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI & ORS. VS. UN ION OF INDIA & ORS. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND HELD THAT THE LATE FEE U/S 234E OF THE ACT HAS RAIS ED VIDE IMPUGNED DEMAND NOTICE U/S 200 A OF THE ACT . WE FIND FORCE IN THE CONTENTION OF THE LD. AR OF THE ASSESSEE. IF TH ERE IS CONFLICTING VIEWS TAKEN BY THE TWO HON'BLE COURTS, THEN THE VIE W, WHICH FAVOURS THE ASSESSEE SHOULD BE ADOPTED. IN THIS REG ARD, THE LD AR OF THE ASSESSEE HAS RELIED ON THE DECISION OF TH E HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHI P P. LTD. (2014) 367 ITR 466 (SC). IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VATIKA TOWNSHI P (SUPRA), THE DEMAND SO RAISED ARE DIRECTED TO BE DELETED. SIMILARLY IDENTICAL FINDINGS HAVE ALSO BEEN GIVEN I N ALL THE APPEALS OF OTHER ASSESSMENT YEARS.' 13. WE FURTHER FIND THAT THE COORDINATE AGRA BENCH IN THE CASE OF STATE BANK OF INDIA, GWALIOR (SUPRA) AGAIN DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION I N CASE OF SUDARSHAN GOYAL(SUPRA) OBSERVING AS FOLLOWS: 8. HEARD THE RIVAL CONTENTION AND PERUSED THE MATER IAL RELEVANT. WE FIND THAT WHILE DECIDING THE ISSUE AGAINST THE A PPELLANT ASSESSEE THE LD. CIT(A) HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UNION OF INDIA ', 83 TAXMANN.COM 137 (GUJ.) WHEREIN IT WAS SBI GROUP 14 HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A TDS STATEM ENT OF DEDUCTION OF TAX AT SOURCE AND FOR MAKING ADJUSTMEN T. THE LD. CIT(A) HAS FURTHER HELD THAT THIS DECISION WAS DELI VERED AFTER CONSIDERING NUMEROUS ITAT AND HIGH COURT DECISIONS AND THEREFORE THIS DECISION IN 'RAJESH KAURANI' (SUPRA) , HOLDS THE FIELDS. 9. IT IS SEEN THAT PRIOR 01.06.2015, THERE WAS NO E NABLING PROVISION IN THE ACT U/S 200A FOR RAISING DEMAND IN RESPECT OF LEVY OF FEE U/S 234E OF THE ACT. THE PROVISION OF SECTION 234E OF THE ACT IS CHARGING PROVISION I.E. SUBSTANTIVE PROV ISION WHICH COULD NOT BE APPLIED RETROSPECTIVELY, UNLESS IT IS EXPRESSLY PROVIDED IN THE ACT, TO LEVY THE LATE FEE FOR ANY D ELAY IN FILING THE TDS STATEMENT FOR THE PERIOD PRIOR TO 01.06.2015. T HE COUNSEL FOR THE ASSESSEE HAS RIGHTLY CONTENDED THAT IN THE ABSENCE OF ENABLING PROVISIONS U/S 200 A OF THE ACT , SUCH LEVY OF LATE FEE IS NOT VALID RELYING ON GROUP OF SBI AND ORS. THE DECISIONS IN THE CASES OF ' CIT VS. VATIKA TOWNSHIP PVT. LTD . (2014) 367 ITR 466 ( SC), 'SUDARSHAN GOYAL VS DCIT (TDS)' ITA NO .442/AGR/2017 AND FATEHRAJ SINGHVI VS. UOI (2016) 2 89 CTR 0602 (KARN) (HC). THE DECISIONS RELIED ON BY TH E LD. DR ARE DISTINGUISHABLE ON FACTS, AS THE ISSUE INVOLVED IN THOSE CASES PERTAINS TO INTEREST U/S 201(1) AND 201(1A) ON THE AMOUNT OF TDS WHEREAS IN THE PRESENT CASES THE ISSUE WERE PER TAINS TO LIABILITY OF LATE FEE U/S 234E OF THE ACT FOR DELAY IN FILING TDS STATEMENT WHICH WAS INSERTED FROM 01.06.2015. 10. ON SIMILAR FACTS, WE HAVE DECIDED THE SAME ISSU E IN THE ASSESSEE'S OWN CASE ' SUDERSHAN GOYAL VS. DCIT (TDS )', IN ITA NO. 442/AGRA/2017 DTD. 09.04.2018 AUTHORED BY ONE O F US (THE LD. J.M.). THE RELEVANT PART OF THE ORDER IS REPROD UCED AS FOLLOWS: '3. HEARD. THE LD. CIT(A), WHILE DECIDING THE MATTE R AGAINST THE ASSESSEE, HAS PLACED RELIANCE ON ' RAJESH KAURANI VS. UOI ', 83 TAXMANN.COM 137 (GUJ), WHEREIN, IT HAS BEEN HELD TH AT SECTION 200A OF THE ACT IS A MACHINERY PROVISION PROVIDING THE MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION O F TAX AT SBI GROUP 15 SOURCE AND FOR MAKING ADJUSTMENTS. THE LD. CIT(A) H AS HELD THAT THIS DECISION WAS DELIVERED AFTER CONSIDERING NUMER OUS ITAT/HIGH COURT DECISIONS AND SO, THIS DECISION IN 'RAJESH KAURANI' (SUPRA) HOLDS THE FIELD. 4. WE DO NOT FIND THE VIEW TAKEN BY THE LD. CIT(A) TO BE CORRECT IN LAW. AS AGAINST 'RAJESH KAURANI' (SUPRA), 'SHRI GRO UP OF SBI AND ORS. FATEHRAJ SINGHVI AND OTHERS VS.UOI ', 73 TAXMANN.COM 252 (KER), AS ALSO ADMITTED BY THE LD. CIT(A) HIMSELF, DECIDES THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ONLY OBJECTION OF THE LD. CIT(A) IS THAT THIS DECISION AND OTHERS TO THE SAME EFFECT HAVE BEEN TAKEN INTO CONSIDERATION BY THE HON'BLE GUJARA T HIGH COURT WHILE PASSING 'RAJESH KAURANI' (SUPRA). HOWEVER, WH ILE OBSERVING SO, THE LD. CIT(A) HAS FAILED TO TAKE INT O CONSIDERATION THE SETTLED LAW THAT WHERE THERE IS A CLEAVAGE OF O PINION BETWEEN DIFFERENT HIGH COURTS ON AN ISSUE, THE ONE IN FAVOUR OF THE ASSESSEE NEEDS TO BE FOLLOWED. IT HAS SO BEEN H ELD BY THE HON'BLE SUPREME COURT IN ' CIT VS. VEGETABLE PRODUCTS LTD .', 88 ITR 192 (SC). IT IS ALSO NOT A CASE WHERE THE DECIS ION AGAINST THE ASSESSEE HAS BEEN RENDERED BY THE JURISDICTIONAL HI GH COURT QUA THE ASSESSEE. 5. IN 'SHRI FATEHRAJ SINGHVI AND OTHERS' (SUPRA) IT HAS BEEN HELD, INTER ALIA, AS FOLLOWS: '22. IT IS HARDLY REQUIRED TO BE STATED THAT, AS PE R THE WELL ESTABLISHED PRINCIPLES OF INTERPRETATION OF STATUTE , UNLESS IT IS EXPRESSLY PROVIDED OR IMPLIEDLY DEMONSTRATED, ANY P ROVISION OF STATUTE IS TO BE READ AS HAVING PROSPECTIVE EFFECT AND NOT RETROSPECTIVE EFFECT. UNDER THE CIRCUMSTANCES, WE F IND THAT SUBSTITUTION MADE BY CLAUSE (C) TO (F) OF SUB-SECTI ON (1) OF SECTION 200A CAN BE READ AS HAVING PROSPECTIVE EFFECT AND N OT HAVING RETROACTIVE CHARACTER OR EFFECT. RESULTANTLY, THE D EMAND UNDER SECTION 200A FOR COMPUTATION AND INTIMATION FOR THE PAYMENT OF FEE UNDER SECTION 234E COULD NOT BE MADE IN PURPORT ED EXERCISE OF POWER UNDER SECTION 200A BY THE RESPONDENT FOR T HE PERIOD OF THE RESPECTIVE ASSESSMENT YEAR PRIOR TO 1.6.2015. H OWEVER, WE MAKE IT CLEAR THAT, IF ANY DEDUCTOR HAS ALREADY PAI D THE FEE AFTER INTIMATION RECEIVED UNDER SECTION 200A, THE AFORESA ID VIEW WILL SBI GROUP 16 NOT PERMIT THE GROUP OF SBI AND ORS. DEDUCTOR TO RE OPEN THE SAID QUESTION UNLESS HE HAS MADE PAYMENT UNDER PROT EST.' 6. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING 'SH RI FATEHRAJ SINGHVI AND OTHERS' (SUPRA), 'SIBIA HEALTHCARE PVT. LTD. VS. DCIT (TDS)', ORDER DATED 09.06.2015 PASSED IN ITA NO.90/ ASR/2015, FOR A.Y.2013-14, BY THE AMRITSAR BENCH OF THE TRIBU NAL, AND 'SHRI KAUR CHAND JAIN VS. DCIT, CPC (TDS) GHAZIABAD ', ORDER DATED 15.09.2016, IN ITA NO.378/ASR/2015, FOR A.Y. 2012-13, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED AS JUSTIF IED. THE ORDER UNDER APPEAL IS REVERSED. THE LEVY OF THE FEE IS CA NCELLED.' 11. IN THE ABOVE VIEW, RESPECTFULLY FOLLOWING 'SHRI FATEHRAJ SINGHVI AND ORS' (SUPRA), 'SIBIA HEALTHCARE PVT. LT D. VS. DCIT (SUPRA), 'SHRI KAUR CHAND JAIN VS. DCIT', (SUPRA), AND OUR OWN FINDING IN THE CASE OF 'SUDERSHAN GOYAL' (SUPRA), W E ACCEPT THE GRIEVANCE OF THE ASSESSEES AS GENUINE. ACCORDINGLY, THE ORDERS OF THE CIT(A) ARE REVERSED AND THE FEE SO LEVIED UN DER SECTION 234E OF THE ACT IS CANCELLED. 14. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISION OF THE COORDINATE BENCH CONSISTENTLY HOLDIN G THAT IN THE INTIMATION PREPARED U/S 200A OF THE ACT UP TO 31 ST MAY 2015, THE LATE FILING FEE U/S 234E OF ACT CANNOT BE CHARGED WHILE PROCESSING THE TDS RETURN/STATEMENT BECAUSE ENABLING CLAUSE (C) OF SUB-SECTION (1) OF SEC TION 200A HAVE BEEN INSERTED W.E.F. 01.06.2015 AND BEFORE THIS AMENDMENT W.E.F 01.06.2015 THERE WAS NO ENABLING PROVISION IN THE ACT U/S 200A OF THE ACT FOR RAISING DEMAND IN RESPECT OF LEVY OF FEES U/S 234E OF THE ACT. 15. WE ARE OF THE CONSIDERED OPINION THAT IN ALL THESE 56 APPEALS THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY O F LATE FEE SBI GROUP 17 U/S 234E OF THE ACT. WE, ACCORDINGLY, SET ASIDE THE F INDINGS OF LD. CIT(A) IN ALL THESE APPEALS AND ALLOW THE COMMON ISSUE IN FAVOUR OF THE ASSESSEE. 16. IN THE RESULT, ALL 56 APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13 .11.20 18. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 13/ 11/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE