Anjani Technoplast Limited., New Delhi V. ACIT - TDS CPC, Ghaziabad

ITA 7932/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7570 (ITAT-DELHI)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Rule of consistency; Retrospective amendment; Reasonable cause; Condonation of delay; TDS; Set aside
• Section: 201(1); 195; 234E; 200A; 192; 246A; 2(A); 13; 272A; 22; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.7931 TO 7937/DEL/2019 ASSESSMENT YEAR: 2013-14 ITA NO.7938 TO 7946/DEL/2019 ASSESSMENT YEAR: 2014-15 ITA NO.7947 TO 7952/DEL/2019 ASSESSMENT YEAR: 2015-16 ANJANI TECHNOPLAST LIMITED, FLAT NO.B-63, 6 TH FLOOR, NAV KUNJ APARTMENT, PLOT NO.87, IP EXTENSION, PATPARGANJ, NEW DELHI 110091. PAN: AACCA3104G VS ACIT-TDS, CPC, GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH GUPTA, CA REVENUE BY : MS RAKHI VIMAL, SR. DR DATE OF HEARING : 27.08.2020 DATE OF PRONOUNCEMENT : 31.08.2020 ORDER PER R.K. PANDA, AM: THIS BATCH OF APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE SEPARATE ORDERS OF THE CIT(A) DATED 28 TH JUNE, 2019 CONFIRMING THE LEVY OF LATE FILING FEE U/S 234E BY THE AO. ITA NO S . 7931 TO 7952 /DEL/201 9 2 2. AT THE OUTSET, THE LD. COUNSEL, REFERRING TO THE ORDER OF THE CIT(A), SUBMITTED THAT THE LD. CIT(A) HAS DISMISSED ALL THESE APPEALS BY NOT CONDONING THE DELAY WHICH ARE RANGING FROM 1357 DAYS TO 2065 DAYS. REF ERRING TO THE COPY OF THE ORDER PASSED U/S 154 BY THE CPC CELL, HE SUBMITTED THAT T HE ORDER WAS PASSED ON 6 TH FEBRUARY, 2019 AND AGAINST THE SAID ORDER, THE ASSE SSEE HAD FILED THE APPEAL ON 26 TH FEBRUARY, 2019 WHICH WAS WELL WITHIN THE DUE DATE S INCE THE DATE OF FILING OF THE APPEAL BEFORE THE CIT(A) IS 7 TH MARCH, 2019. ALTHOUGH THE LD.CIT(A) HAS DULY TAKEN NOTE OF THE FACT THAT THE APPEAL HAS BEEN FIL ED AGAINST THE ORDER DATED 6 TH FEBRUARY, 2019 AS PER PARA 4.2 OF HIS ORDER, BUT, T REATED THE SAME AS BELATED ON THE GROUND THAT ORIGINAL ORDER U/S 200A WAS PASSED ON 2 7 TH JULY, 2019. THUS, THE LD.CIT(A) HAS GONE ON WRONG APPRECIATION OF FACTS A ND, THEREBY, DISMISSED THE APPEAL ON ACCOUNT OF DELAY WHICH IS NOT CORRECT. R EFERRING TO FORM NO.35 ALONG WITH THE ORDER PASSED U/S 54, HE SUBMITTED THAT THE APPEAL WAS FILED BEFORE THE CIT(A) AGAINST THE ORDER PASSED U/S 154. HOWEVER, DUE TO A CLERICAL TYPOGRAPHICAL ERROR, IT WAS INADVERTENTLY MENTIONED AS 200A. THE REFORE, THIS CONFUSION AROSE. 3. REFERRING TO THE DECISION OF THE HONBLE DELHI H IGH COURT IN THE CASE OF REMFRY AND SONS VS. CIT, 276 ITR 1, HE SUBMITTED TH AT THE HONBLE HIGH COURT HAS HELD THAT THE PROCEDURAL/TECHNICAL MISTAKES SHO ULD NOT STAND IN THE WAY OF IMPARTING JUSTICE AND THE AUTHORITY MUST ALLOW OPPO RTUNITY TO THE ASSESSEE TO RECTIFY MISTAKES. HE SUBMITTED THAT SINCE, ON THE ISSUE OF DELAY THE LD.CIT(A) HAS NEITHER CONFRONTED THE SAME TO THE ASSESSEE NOR HAS APPRECI ATED THE FACTS PROPERLY, ITA NO S . 7931 TO 7952 /DEL/201 9 3 THEREFORE, THE DISMISSAL OF THE APPEAL ON ACCOUNT O F DELAY BEING NOT IN ACCORDANCE WITH LAW SHOULD BE QUASHED. 4. HE SUBMITTED THAT THE LD.CIT(A) HAS ALSO DECIDED THE ISSUE ON MERIT AND HAS SIMPLY HELD THAT SINCE THE AO HAS LEVIED LATE FILIN G FEE U/S 234E ONLY AFTER 01.06.2015 WHICH WAS SUBSEQUENTLY CORRECTED ON 6 TH FEBRUARY, 2019, THE CLAIM OF THE ASSESSEE FOR THE EXEMPTION FROM LEVY OF LATE FI LING FEE IS LIABLE TO BE DISMISSED. 5. REFERRING TO THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF UDIT JAIN VS. ACIT, VIDE ITA NO.5380/DEL/2017 AND B ATCH OF OTHER APPEALS, ORDER DATED 29.11.2019, HE SUBMITTED THAT THE TRIBUNAL HA S THOROUGHLY DISCUSSED THE ISSUE AND HELD THAT WHEN THE PERIOD OF DEFAULT WAS BEFORE 01.06.2015, THERE IS NO MERIT IN CHARGING LATE FILING FEE U/S 234E OF THE A CT. REFERRING TO VARIOUS OTHER DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL , HE SUBMITTED THAT THE TRIBUNAL HAS TAKEN THE VIEW THAT LEVY OF FEE U/S 234E CANNOT BE LEVIED ON SUCH KIND OF DEFAULT BEFORE 01.06.2015. HE ACCORDINGLY SUBMITTE D THAT ALL THESE APPEALS FILED BY THE ASSESSEE SHOULD BE ALLOWED AND THE LEVY OF FEE U/S 234E BY THE AO WHICH HAS BEEN SUSTAINED BY THE CIT(A) SHOULD BE DELETED. 6. THE LD. DR, ON THE OTHER HAND, STRONGLY SUPPORTE D THE ORDER OF THE CIT(A). SHE SUBMITTED THAT THE COMMON ISSUE IN ALL THESE AP PEALS UNDER CONSIDERATION IS LEVY OF FEES U/S 234E OF THE ACT. SHE SUBMITTED THA T THE CONTENTION OF THE ASSESSEE THAT FEE U/S 234E IS NOT LEVIABLE BEFORE 01.06.2015 , I.E., THE DATE WHEN CLAUSE (C) ITA NO S . 7931 TO 7952 /DEL/201 9 4 WAS INSERTED IN SECTION 200A(1) FOR THE COMPUTATION OF THE SAID FEES AT THE TIME OF PROCESSING IS NOT CORRECT. SHE SUBMITTED THAT THE DECISIONS OF THE TRIBUNAL RELIED ON BY THE LD. COUNSEL ARE NOT APPLICABLE SINCE THE FAC TS ARE LARGELY DISTINGUISHABLE. THE TRIBUNAL HAS NOT APPRECIATED THE RATIONALE OF T HE AMENDMENTS BROUGHT IN THE FORM OF INSERTION OF SECTION 234E BY THE FINANCE AC T, 2012 AND INSERTION OF CLAUSE (C) TO SEC. 200A(1) OF THE I.T. ACT BY FINANCE ACT 2015 AS WELL AS THE DECISIONS OF VARIOUS HIGH COURTS INCLUDING JURISDICTIONAL HIGH C OURT. 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. 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 ALONGWI TH HOST OF CASE-LAWS DECIDED IN FAVOUR OF REVENUE. SHE SUBMITTED THAT T HE PREMISE /FOUNDATION OF THE DECISION OF HONBLE KARNATAKA HIGH COURT HAS ALSO B EEN ANALYSED AND IS DISTINGUISHABLE IN VIEW OF THE CASE-LAWS REFERRED T O. ACCORDINGLY SHE URGED THAT THE ABOVE DECISION DATED. 29.11.2019 SHOULD NOT BE FOLL OWED IN THE NAME OF RULE OF CONSISTENCY IN THE CASE OF ABOVE MENTIONED APPEALS AS ALSO RES- JUDICATA IS NOT APPLICABLE IN INCOME-TAX PROCEEDINGS. 7. AS REGARDS RULE OF CONSISTENCY IS CONCERNED, S HE PLACED RELIANCE ON THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE O F KRISHAK BHARATI COOPERATIVE LTD VS DC1T [2012] 23 TAXMANN.COM 265 (DELHI) WHERE IN HONBLE DELHI HC ITA NO S . 7931 TO 7952 /DEL/201 9 5 CONSIDERED THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG VS CIT (1992] 60 TAXMAN 248(SC) AND HAS HEL D THAT THE RULE OF CONSISTENCY SHOULD NOT CREATE ANOMALY. SHE ALSO RELIED ON THE F OLLOWING DECISIONS:- (I) ROHITASAVA CHAND [2008] 306 ITR 242 (DELHI) (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 TAXRAANN.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) 8. 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 PA RAS. PARA (III) RELATES TO INSERTION OF SECTION 234E IN THE STATUTE & RELEVANT TO THE ISSUE UNDER CONSIDERATION. 9. 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. ITA NO S . 7931 TO 7952 /DEL/201 9 6 10. SHE ALSO DREW THE ATTENTION OF THE BENCH TO TH E 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. 11. 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 APPEAL HAVE BEEN DI SMISSED. IN PARTICULAR, THE DECISIONS OF HONBLE GUJARAT HIGH COURT, MADRAS HIG H COURT & RAJASTHAN HIGH COURT MAY KINDLY BE REFERRED TO. IN SEVERAL CASES T HE PERIOD UNDER CONSIDERATION BEFORE HONBLE HIGH COURTS INCLUDED THE PERIOD PRIO R TO 01.06.2015. THE LD. DR RELIED ON THE FOLLOWING DECISIONS:- (I) RAJESH KOURANI VS. UOI [2017] 83 TAXMANN.COM 13 7 (GUJARAT) (II) BISWAJIT DAS VS. UOI, [2019] 103 TAXMANN.COM 2 90 (DELHI)] (III) QATALYS SOFTWARE TECHNOLOGIES (P) LTD. VS. UO I, [2020] 115 TAXMANN.COM 345 (MADRAS) ] ITA NO S . 7931 TO 7952 /DEL/201 9 7 (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) 12. THE LD. DR SUBMITTED THAT A HARMONIOUS AND CONJ OINT 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: 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 ADJUST MENTS, 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 ITA NO S . 7931 TO 7952 /DEL/201 9 8 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 INTR ODUCTION OF SECTION 234E, IT WAS ALWAYS OPEN FOR THE REVENUE TO CHARGE THE FE ES IN TERMS OF SECTION 234 E OF THE ACT FROM THE DATE OF ITS INTRODUCTION IN T HE STATUTE I.E. 01.07.2012. IT MAY BE NOTED THAT SECTION 234.E CREATES AN AUTOMATI C CHARGE ON THE DEDUCTORS WHO HAVE DEFAULTED ON THIS COUNT & WHO AR E REQUIRED TO PAY THE FEE U/S 234E BEFORE DELIVERING SUCH BELATED TDS/TCS RETURNS /STATEMENTS IN ACCORDANCE WITH SUB-SECTION (3) OF SEC. 234E. BY AM ENDMENT [INTRODUCTION OF CLAUSE 200A(L)(C)] THIS ADJUSTMENT WAS BROUGHT W ITHIN THE FOLD OF SECTION 200A OF THE IT ACT SO THAT THE FEE U/S 234E CAN BE COMPUTED AT THE TIME OF PROCESSING & ISSUE OF INTIMATION IN THE EVENT OF NO N-PAYMENT OF FEE BEFORE DELIVERING SUCH BELATED TDS/TCS STATEMENTS BY THE D EFAULTING DEDUCTORS. ANY VIEW THAT INHIBITS THE LEVY OF FEES UNDER SECTI ON 234 E DUE TO THE ABSENCE OF REGULATORY PROVISION WILL TANTAMOUNT TO CHARGING SECTION YIELDING TO MACHINERY PROVISION WHICH SHOULD NOT BE ALLOWED. THIS HAS NOT BEEN CONSIDERED BY HONBLE ITAT. 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 ITA NO S . 7931 TO 7952 /DEL/201 9 9 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 INTRODUCTION OF CLAUSE 200A(L)(C ) (I.E. GIVING EFFECT TO COMPUTATION OF FEES U/S 234E OF TH E ACT) SHOULD INCLUDE 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 FILING SUCH TDS RETURNS AND STATEMENTS. THEREFORE, IT MAY BE SEEN THAT THE CHAR GING PROVISIONS OF SECTION 234E PRECEDES THE OPERATION OF THE MACHINERY PROVIS IONS OF SECTION 200A. HONBLE ITAT HAS NOT APPRECIATED THIS OBVIOUS DIFFE RENCE 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 DEL AY IN FILING OF A TDS RETURN/STATEMENT & IS NOT PENAL IN NATURE SINCE THE INCOME TAX DEPARTMENT HAS TO EXPEND EXTRA EFFORT & RESOURCES FOR PROCESSI NG DELAYED TDS RETURNS OR STATEMENTS AND ALSO THE ADDITIONAL BURDEN OF INTERE ST TO BE PAID ON REFUNDS PAYABLE TO THE ASSESSEE ON WHOSE ACCOUNT TAX DEDUCT ION HAS BEEN MADE. [ AS ITA NO S . 7931 TO 7952 /DEL/201 9 10 HELD IN PARA 27 BY HONBLE DELHI HIGH COURT IN THE CASE OF BISWAJIT DAS VS. UOI, [2019] 103 TAXMANN.COM 290 (DELHI)] THAT THE F EE IMPOSED U/S 234E OF THE ACT IS FOR ALL INTENTS & PURPOSES A LATE FEE PAYABLE FOR ACCEPTING TDS STATEMENT/RETURN AT BELATED POINT OF TIME. THIS FAC T 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 PENALT Y 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 PRO VISIONS 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 MA NDATORILY LEVIABLE FOR THE DELAY IN FILING OF TDS STATEMENTS. IN THIS SENS E, INSERTION OF CLAUSE (C) TO SECTION 200A(1), IS ONLY AN ADDENDUM TO THE SECTION TO PROVIDE FOR THE MACHINERY PROVISION TO COMPUTE THE FEE PAYABLE U/S 234E AT THE TIME OF ITA NO S . 7931 TO 7952 /DEL/201 9 11 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. 13. THE LD. DR SUBMITTED THAT AS PER VARIOUS JUDICI AL 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 L EGISLATION (SECTION IMPOSING STATUTORY LIABILITY AS WELL AS THE CHARGING SECTION FOR LEVY OF FEES IN CASE OF VIOLATION OF STATUTORY LIABILITY) WERE IN EFFECT MU CH EARLIER FROM THE DATE OF INSERTION OF 200A(3) WHICH IS MERELY A MECHANICAL P ROVISION PROVIDING FOR COMPUTATION, SUCH AMENDMENT IN PROCEDURAL SECTION S HOULD BE CONSIDERED AS CLARIFICATORY IN NATURE. THE SAME HAVE NOT BEEN CO NSIDERED BY HONBLE ITAT. 14. SHE SUBMITTED THAT IN THE CASE OF RAJESH KOURA NI, 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 ITA NO S . 7931 TO 7952 /DEL/201 9 12 FATEHRAJ SINGHVI & OTHERS. THE ISSUE HAS BEEN DISCU SSED 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 STATUTE A ND EVEN PRIOR TO 01.06.2015 WHEN SECTION 200A(1) WAS AMENDED TO INCLUDE CLAUSE (C). HONBLE HIGH COURT HAS HELD THAT SECTION 200A OF THE ACT IS A MACHINERY PR OVISION PROVIDING MECHANISM FOR PROCESSING A STATEMENT OF IDS AND FOR MAKING AD JUSTMENTS WHEREAS SECTION 234E IS A CHARGING PROVISION CREATING A CHARGE FOR LEVYING FEE FOR CERTAIN DEFAULTS IN FILING THE STATEMENTS. W.E.F 01.06.2015 THE PROV ISION 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, 1 9 & 20 OF THE ORDER WHERE SPECIFIC FINDINGS OF HONBLE HIGH COURT ARE RECORDE D. THE CATEGORICAL FINDINGS OF HONBLE GUJARAT HIGH COURT, THOUGH CONSIDERED BY HO NBLE ITAT IN ITS ORDER DT 29.11.2019, HAS NOT BEEN APPRECIATED BY HONBLE TRI BUNAL IN RIGHT PERSPECTIVE WHEN READ IN CONJUNCTION WITH THE PROVISIONS, EXPLA NATORY NOTES AND ORDERS OF VARIOUS OTHER HIGH COURTS WHEREIN THE VALIDITY OF P ROVISIONS OF SEC.234E HAS BEEN UPHELD. 15. 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 DU NLOD SHIKSHAN SANSTHAN VS. ITA NO S . 7931 TO 7952 /DEL/201 9 13 UOI REPORTED IN [2015] 63 TAXMANN.COM 243 (RAJ)]. P ARA-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 EXE RCISE OF THE POWER UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FIND ANY V ALID REASONS OR JURISDICTION TO INTERFERE WITH THE COMPENSATORY FEES IMPOSED FOR LATE FILING OF THE TDS RETURNS ON FLAT RATES. THE ABSENCE OF ANY PROVISIO N FOR CONDONATION OF DELAY AND THE APPEAL PRIOR TO AMENDMENTS ALSO DID NOT MAK E THE IMPOSITION OF LATE FEES BY SECTION 234 E TO BE ULTRA VIRES. 16. THE FINDINGS OF HONBLE RAJASTHAN HIGH COURT HA S ALSO ESCAPED THE CONSIDERATION BY HONBLE ITAT. SHE ACCORDINGLY REQ UESTED THAT THE SAME MAY KINDLY BE CONSIDERED TO AVOID ANY MISCARRIAGE OF JU STICE. 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 17. 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 CHA RGE ON THE 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 ITA NO S . 7931 TO 7952 /DEL/201 9 14 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 VALIDI TY OF SEC. 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 JURISDI CTIONAL HIGH COURT OF DELHI AND PUNJAB & HARYANA HIGH COURT. RELEVANT CASE-LAWS HAV E 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 I N 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. 18. ON PERUSAL OF THE DECISIONS OF VARIOUS HIGH COU RTS WHEREIN THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SEC. 234E HAVE BEEN UPHEL D, IT MAY BE SEEN THAT IN SEVERAL CASES THE PERIOD UNDER CONSIDERATION BEFORE HONBLE HIGH COURTS WERE EVEN THE PERIODS PRIOR TO 01.06.2015 I.E. THE DATE WHEN CLAU SE (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. 234 E BY HONBLE HIGH COURTS, IT CANT BE SAID THAT THE CONTROVERSY, BEING RAISED NO W, HAS ESCAPED THE EYES OF HONBLE HIGH COURTS AND THEREFORE THERE CANT BE AN Y DOUBT THAT THERE IS ANY IOTA OF AMBIGUITY WITH RESPECT TO THE PERIOD OF DEFAULT FOR WHICH THE FEE U/S 234E IS ITA NO S . 7931 TO 7952 /DEL/201 9 15 CHARGEABLE. IN VIEW OF THE SAME AND CATEGORICAL FIN DINGS OF HONBLE HIGH COURTS, THE FEE U/S 234E IS UNDOUBTEDLY LEVIABLE FOR THE DE FAULTS OF PERIOD IN FILING TDS/TCS STATEMENTS/RETURNS, EVEN FOR THE PERIOD PRI OR TO 01.06.2015 INDEPENDENT TO THE PROVISIONS OF SEC.200A(L) OF THE ACT. THE SA ME HAVE NOT BEEN CONSIDERED BY HONBLE ITAT. 19. THE LD. DR ACCORDINGLY SUBMITTED THAT IN VIEW O F THE EXTANT PROVISIONS, CASE LAWS REFERRED TO ABOVE AND THE DISCUSSIONS SUPRA, T HE APPEALS OF THE ASSESSEES BE DISMISSED ON MERIT. IT IS ALSO SUBMITTED THAT THIS WRITTEN SUBMISSIONS MAY KINDLY BE INCORPORATED & REPRODUCED IN THE ORDER FOR KIND REF ERENCE. 20. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOIND ER SUBMITTED THAT IT IS TRUE THAT THE HONBLE GUJARAT HIGH COURT HAS TAKEN A CONTRARY VIEW. HOWEVER, THERE IS NO DECISION OF THIS JURISDICTIONAL HIGH COURT ON THIS ISSUE. THEREFORE, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F VEGETABLE PRODUCTS LTD., REPORTED IN 88 ITR 192, WHERE IT HAS BEEN HELD THAT WHEN THERE ARE CONFLICTING DECISIONS, THE DECISION IN FAVOUR OF THE ASSESSEE S HOULD BE FOLLOWED, THE DECISION OF THE HONBLE KARNATAKA HIGH COURT SHOULD BE FOLLOWED AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE ALLOWED. 21. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. WE FIND, THE ASSESSEE, IN THE INSTANT CASE HAS BASICALLY CHA LLENGED THE LEVY OF LATE FEE U/S ITA NO S . 7931 TO 7952 /DEL/201 9 16 234E BY THE AO WHICH HAS BEEN UPHELD BY THE CIT(A) AND WHO HAS ALSO DISMISSED THESE APPEALS ON ACCOUNT OF DELAY IN FILING. 22. SO FAR AS THE DELAY IN FILING OF THE APPEALS BE FORE THE CIT(A) IS CONCERNED, A PERUSAL OF THE FORM NO.35 FILED ALONG WITH COPY OF ORDER PASSED U/S 154 BY THE CPC SHOWS THAT THE DATE OF ORDER U/S 200A WAS 27 TH JULY, 2013 AND THE ASSESSEE FILED THE RECTIFICATION APPLICATION BEFORE THE CPC AND THE ORDER U/S 154 WAS PASSED ON 6 TH FEBRUARY, 2019. THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER PASSED U/S 154 ON 26 TH FEBRUARY, 2019 WHICH IS WELL WITHIN THE TIME. EVE N THE LD.CIT(A) AT PARA 4.2 OF HIS ORDER HAS ALSO MENTIONED THAT TH E ASSESSEE HAS FILED THE APPEAL AGAINST THE CORRECTION DATED 6 TH FEBRUARY, 2019. HOWEVER, THE LD.CIT(A), WITHOUT CONSIDERING THE FACTS PROPERLY, HAS HELD THAT THERE IS INORDINATE DELAY IN FILING OF THE APPEALS BEFORE HIM AND THE ASSESSEE FAILED TO SUBMI T EXPLANATION SO AS TO JUSTIFY THE ABOVE DELAY FOR WHICH HE DISMISSED THE APPEALS ON A CCOUNT OF DELAY IN FILING THESE APPEALS. IN OUR OPINION, THERE IS NO DELAY IN THE INSTANT CASE AND ALL THESE CONFUSION AROSE BECAUSE OF SOME TYPOGRAPHICAL ERROR IN THE FO RM 35 WHERE THE ASSESSEE, INSTEAD OF MENTIONING SECTION 154, MENTIONED SECTIO N 200A AGAINST THE SECTION AND SUB-SECTION OF THE INCOME-TAX ACT, 1961. WE, THERE FORE, FIND MERIT IN THE ARGUMENT OF THE LD. COUNSEL THAT THERE IS NO DELAY IN FILING OF THE ABOVE APPEALS. 23. FURTHER, THE HONBLE DELHI HIGH COURT IN THE CA SE OF REMFRY AND SONS (SUPRA) HAS HELD THAT PROCEDURAL/TECHNICAL MISTAKES COULD NOT STAND IN THE WAY OF IMPARTING JUSTICE AND THE AUTHORITY MUST ALLOW OPPO RTUNITY TO THE ASSESSEE TO RECTIFY ITA NO S . 7931 TO 7952 /DEL/201 9 17 MISTAKES. SINCE, IN THE INSTANT CASE, THERE WAS ME RELY A TECHNICAL MISTAKE IN WRONG MENTIONING OF THE PROVISION, THEREFORE, WE ARE OF T HE CONSIDERED OPINION THAT THIS TECHNICAL MISTAKE SHOULD NOT STAND IN THE WAY OF IM PARTING JUSTICE AND, THEREFORE, THE ORDER OF THE CIT(A) HOLDING THAT THERE IS DELAY IN FILING OF THESE APPEALS IS NOT CORRECT. ACCORDINGLY, WE HOLD THAT THE ASSESSEE HA S FILED THE APPEALS WELL IN TIME AND THERE IS NO DELAY. THE ORDER OF THE CIT(A) ON THIS ISSUE IS ACCORDINGLY DISMISSED. 24. THE LD. COUNSEL FOR THE ASSESSEE FILED THE FOLL OWING CHART TO EXPLAIN THE AMOUNT OF LATE FILING FEES ALONG WITH INTEREST U/S 220(2) OF THE ACT WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A). ITA NO S . 7931 TO 7952 /DEL/201 9 18 25. A PERUSAL OF THE ABOVE CHART SHOWS THAT ALL THE SE TDS STATEMENTS WERE FILED BEFORE 01.06.2015, THEREFORE, THE QUESTION 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 AND INTEREST U/S 220(2 ) OF THE IT ACT, 1961. WE FIND, IDENTICAL ISSUE HAD COME UP BEFORE THE COORDINATE B ENCH OF THE TRIBUNAL IN THE CASE OF UDIT JAIN (SUPRA). THE TRIBUNAL, AFTER CONSIDER ING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF FATEHRAJ SINGHV I VS. UOI AS WELL AS THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF RAJESH KOURANI VS. UOI REPORTED IN (2017) 83 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 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 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 ITA NO S . 7931 TO 7952 /DEL/201 9 19 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 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)-T DS, 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 01.06.2015, 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 234E OF T HE ACT IS NOT VALID AND THE SAME IS DELETED. THE INTIMATION ISSUE D 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 DATED 13.01.2017 AND ALSO IN SWAMI VIVEKANAND VIDYALAYA V S. DCIT(CPC)-TDS (SUPRA) AND MEDICAL SUPERINTENDANT RU RAL HOSPITAL VS. ACIT (CPC)-TDS IN ITA NOS.2072 & 2073/ PUN/2017, ORDER DATED 21.12.2017, WHICH HAS BEEN RELIED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. 13. THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF 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 ITA NO S . 7931 TO 7952 /DEL/201 9 20 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 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 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 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 INSERTI ON 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-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 ITA NO S . 7931 TO 7952 /DEL/201 9 21 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 2 00A OF THE 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 UNDER SECTION 200A OF THE ACT WERE FOR COMPUTATION AND INTIMATION FOR PAYMENT OF FEES UNDER SECTION 234E OF THE ACT A S THEY RELATE FOR THE PERIOD 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 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 AMEN DMENT WAS HELD TO BE PROSPECTIVE IN NATURE AND HENCE, NOTICES ISSU ED UNDER SECTION 200A OF THE ACT FOR COMPUTATION AND INTIMATION FOR PAYMENT OF LATE FILING FEES UNDER SECTION 234E OF THE ACT RELATING TO THE PERIOD OF TAX DEDUCTION PRIOR TO 01.06.2015 WERE NOT MAINTAIN ABLE AND WERE SET ASIDE BY THE HONBLE HIGH COURT. IN VIEW OF SAI D PROPOSITION BEING LAID DOWN BY THE HONBLE HIGH COURT OF KARNAT AKA (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 L ATE FILING FEES WAS PASSED AFTER JUNE, 2015, THEN THE SAME ARE MAIN TAINABLE, SINCE 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 AND CHARGING LATE FILING FEES UNDER SECTI ON 234E OF THE ACT FOR THE PERIOD OF TAX DEDUCTED PRIOR TO 1ST DAY OF JUNE, 2015. THE SAME CANNOT BE CHARGED BY ISSUE OF NOTICES AFTE R 1ST DAY OF JUNE, 2015 EVEN WHERE THE RETURNS WERE FILED BELATE DLY 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 NOT ITA NO S . 7931 TO 7952 /DEL/201 9 22 EMPOWERED TO CHARGE LATE FILING FEES UNDER SECTION 234E OF THE ACT, EVEN IN CASES WHERE SUCH TDS RETURNS WERE FILED BEL ATEDLY AFTER JUNE, 2015 AND EVEN IN CASES WHERE THE ASSESSING OF FICER PROCESSED THE SAID TDS RETURNS AFTER JUNE, 2015. AC CORDINGLY, WE HOLD THAT INTIMATION ISSUED BY ASSESSING OFFICER UN DER SECTION 200A OF THE ACT IN ALL THE APPEALS DOES NOT STAND AND TH E DEMAND 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 GU JARAT IN RAJESH KOURANI VS. UNION OF INDIA (SUPRA). ON THE OTHER HA ND, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS POIN TED OUT THAT THE ISSUE IS SETTLED IN FAVOUR OF ASSESSEE BY THE HONB LE HIGH COURT OF KARNATAKA IN THE CASE OF FATHERAJ SINGHVI VS. UNION 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 MIS-REFERRED TO BOTH DECISIONS OF HONBLE HIGH COURT OF KARNATAK A 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 KUNDALIA VS. UNION OF INDIA (2015) 54 TAXMANN.COM 200 (BOM) HAD DECIDED THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SECTIO N 234E OF THE ACT AND HAD HELD THEM TO BE ULTRA VIRES BUT HAD NOT DEC IDED 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 PUN E BENCH OF TRIBUNAL IN SERIES OF CASES, WE DELETE THE LATE FIL ING 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 CIT(A) HAD DISMISSED APPEALS OF ASSESSEE BEING DELA YED FOR PERIOD OF DECEMBER, 2013 AND JULY, 2014. THE CIT(A) WHILE COMPUTING DELAY HAD TAKEN THE DATE OF INTIMATION UNDER SECTIO N 200A OF THE ACT AS THE BASIS, WHEREAS THE ASSESSEE HAD FILED AP PEALS BEFORE CIT(A) AGAINST THE ORDER PASSED UNDER SECTION 154 O F THE ACT. THE CIT(A) HAD NOTED THAT RECTIFICATION APPLICATION 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 C ONDONATION OF DELAY, WHEREIN APPEALS WERE FILED BEYOND THE PERIOD PRESCRIBED. ITA NO S . 7931 TO 7952 /DEL/201 9 23 THE ASSESSEE HAD FILED APPEALS AGAINST THE ORDER PA SSED UNDER SECTION 154 OF THE ACT, HENCE THE TIME PERIOD OF AP PEALS FILED BY ASSESSEE BEFORE THE CIT(A) HAVE TO BE COMPUTED FROM THE DATE OF ORDER PASSED UNDER SECTION 154 OF THE ACT AND NOT F ROM THE DATE OF ISSUE OF INTIMATION. THUS, THERE 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 (SUPRA) 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 LIMITATI ON. WE HAVE ALREADY DECIDED THE ISSUE ON MERITS IN FAVOUR OF AS SESSEE. 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 ACIT (SUPRA) HAS ALSO LAID DOWN SIMILAR PROPOSITION AND HELD AS UNDER:- 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 PERU SAL 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 ASS ESSMENT YEAR ITA NO S . 7931 TO 7952 /DEL/201 9 24 2014-15. SINCE ASSESSEE HAD PURCHASED THE PROPERTY FROM EIGHT SELLERS AND THE PAYMENT TO EACH OF THE SELLER HAS B EEN MADE SEPARATELY FOR AN AMOUNT OF RS. 41,87,500/- AGGREGA TING TO RS. 3,35,00,000/-, THE ASSESSEE' CONTENTION HAS BEEN TH AT IT WAS NOT REQUIRED TO DEDUCT TDS, BECAUSE THE PAYMENTS MADE T O EACH SELLER WAS LESS THAN THE PRESCRIBED LIMIT OF RS.50 LACS AND THEREFORE, PROVISION OF SECTION 194IA WAS NOT APPLI CABLE. THE DEMAND HAS BEEN RAISED BY THE DEPARTMENT U/S 200 IN TERMS OF FAILURE TO COMPLY WITH SECTION 200A, WHICH DEALS WI TH THE PROCESSING OF STATEMENT OF TAX DEDUCTED AT SOURCE U /S 200. FIRST OF ALL, SUB SECTION 3 OF SECTION 200 PROVIDES THAT THE PERSON DEDUCTING ANY SUM IN ACCORDANCE WITH PROVISION OF C HAPTER XVII SHALL AFTER PAYING THE TAX DEDUCTED TO THE CREDIT O F 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 OF TAX DEDUCTION AT SOURCE HAS BEEN MADE BY THE PERSON DEDUCTING ANY SUM U/S 200, THEN SUCH STATEMENT SHALL BE PROCESSED IN THE MANNER GIVEN TH EREIN. CLAUSE (C) OF SECTION 200A HAS BEEN SUBSTITUTED BY THE FIN ANCE 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 STATE D ABOVE, THE ASSESSEE HAS DULY DEPOSITED THE TAX NOT AT THE TIME OF PURCHASE ALBEIT ON 5.4.2014 AND ON THE SAME DATE, STATEMENT HAS ALSO BEEN FILED. THE RELEVANT PROVISION OF SECTION 200(3) REA D WITH RULE 31A (4A) ONLY REFERS TO FILING OF 'CHALLAN CUM STATEMEN T' 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 I S GENERATED. THUS, HERE IN THIS CASE, IT CANNOT BE HELD THAT THE RE IS ANY VIOLATION OF SECTION 200(3). IN ANY CASE, THE LEVY OF FEE U/S 200A IN ACCORDANCE WITH THE PROVISION OF SECTION 234E HA S 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 S UCH TAX CAN BE ITA NO S . 7931 TO 7952 /DEL/201 9 25 LEVIED U/S 200A. THIS HAS BEEN CLARIFIED AND HELD B Y HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHV I & ORS VS. UNION OF INDIA REPORTED IN (2016) 289 CTR 0602, WHE REIN THE LORDSHIP HAD MADE FOLLOWING OBSERVATIONS :- '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) HAVE 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 CONCERNED OFFICER OR THE DEPARTMENT TO COMPUTE AND DETERMINE THE FEE UNDER SECTION 234E IN RESPECT OF THE ASSESS MENT YEAR OF THE EARLIER PERIOD AND THE RETURN FILED FOR THE SAI D RESPECTIVE ASSESSMENT YEARS NAMELY ALL ASSESSMENT YEARS AND TH E RETURNS PRIOR TO 1.6.2015. IT WAS SUBMITTED THAT, WHEN NO E XPRESS AUTHORITY WAS CONFERRED BY THE STATUTE UNDER SECTIO N 200A PRIOR TO 1.6.2015 FOR COMPUTATION OF ANY FEE UNDER SECTIO N 234E NOR THE DETERMINATION THEREOF, THE DEMAND OR THE INTIMA TION 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 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 18.05.2015 AND W AS EVEN PAID ON 18.05.2015, THOUGH THE RETURN IN FORM NO.27A WAS FI LED ON 23.06.2016. WE HOLD THAT SINCE THE PERIOD UNDER CONSIDERATION I S 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. 01.0 6.2015 AND SINCE THE ASSESSEE HAD ALREADY DEPOSITED THE TAX DEDUCTED AT SOURCE, ON THE SAME DAY OF DEDUCTION, THERE WAS REASONABLE CAUSE IN THE HAN DS OF THE ASSESSEE IN NOT DEPOSITING THE RETURN IN FORM NO.27A AND THE SAID D EFAULT NEEDS TO BE CONDONED. EVEN OTHERWISE, FOLLOWING THE RATIO LAID DOWN IN THE DECISIONS RENDERED TO IN THE PARAS ABOVE, THE JURISDICTIONAL ISSUE OF EXERCISE OF POWER BY THE ASSESSING OFFICER IN CHARGING LATE FILING FE E U/S 234E OF THE ACT, ITA NO S . 7931 TO 7952 /DEL/201 9 26 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 FILING FEE U/S 234E OF THE ACT. A S WE HOLD THAT NO LATE FILING FEE IS TO BE CHARGED, THEN CONSEQUENT INTERE ST CHARGED U/S 220(2) OF THE ACT ALSO DO NOT SURVIVE. 26. 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 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.2 305 & 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. 27. 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 ITA NO S . 7931 TO 7952 /DEL/201 9 27 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 27.1 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 HAS BEEN C ONSIDERED BY OUR COORDINATE BENCHES AND THERE IS NO SUBSEQUENT DEVELOPMENT TO D EPART THERE FROM. MOREOVER, OUR COORDINATE BENCHES HAVE FOLLOWED ONE APPROACH I N VIEW OF CONFLICTING DECISION OF DIFFERENT HIGH COURTS IN THE 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 ITA NO S . 7931 TO 7952 /DEL/201 9 28 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 FOLLOWED IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF VEGETABLES PRODUCTS LI MITED (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 AND INTEREST THERE ON U/S. 220 (2) IS DI RECTED TO BE DELETED. 28. IN THE RESULT, ALL THE APPEALS FILED BY T HE ASSESSEES ARE ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 31.08.2020. SD/- SD/- (SUDHANSHU SRIVASTAVA) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 31 ST AUGUST, 2020 DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI ITA NO S . 7931 TO 7952 /DEL/201 9 29 DATE 1. DRAFT DICTATED ON 27.08.2020 2. DRAFT PLACED BEFORE THE AUTHOR 28.08.2020 3. DRAFT PLACED BEFORE THE OTHER MEMBER 31.08.2020 4 . APPROVED DRAFT COMES TO THE SR.PS/PS 31.08.2020 5. ORDER UPLOADED ON 31.08.2020 6. FILE SENT TO THE BENCH CLERK 31.08.2020 7. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 8 . DATE ON WHICH FILE GOES TO THE AR 9. DATE OF DISPATCH OF ORDER. +