TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 757
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.... on 24.9.2014 and demand of Rs. 1,32,190/- was determined which included late filing fee of Rs. 1,29,600/- u/s 234E and interest of Rs. 2592/- u/s 220(2). Ld. CIT(A) has confirmed the said addition following the judgment of Hon'ble Bombay High Court in the case of Rashmikant Kundalia vs. Union of India 2015 (54) Taxman.com 200 (Bombay) and judgment of Hon'ble Rajasthan High Court in the case of M/s. Dundlod Shikshan Sansthan vs. Union of India (2015) 63 taxmann.com 243 (Raj.). 3. After considering the rival submissions and on perusal of the relevant findings given in the impugned orders, we find that AO has levied penalty of Rs. 1,29,600/- u/s 234E while processing the statement u/s 200A on 24.9.2014. The assessee's contention has been that such a levy of fees cannot be made u/s 234E prior to 1.6.2015, since there was no enabling provision in section 200A for raising a demand in respect of levy of fees u/s 234E. Therefore, levy of fee is beyond the scope of adjustment provided u/s 200A. The details of fee levied for various assessment years and date of filing of TDS statement and date of intimation is incorporated here under:- S. No. ITAT Appeal No. Amount: AY: Quarter: Dat....
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....ction (3) of section 206C. Section 234E cannot be read in isolation, because it only prescribes the mode of calculation of the fee and it has to be read with the mechanism and the mode provided for its enforcement, that is, the provision which imposes the fee. The amendment made u/s 200A for levying such fee u/s 234E had only come into effect in 1.6.2015 and it cannot be held to operate retrospective because prior to the amendment there was no computation of fee for demand for the payment of fee u/s 234E which could have been made for TDS deducted for any assessment year prior to 1.6.2015. It is trite law that the provision which imposes fees or tax and imposes any kind of liability cannot be given retrospective effect, especially when statute itself provides its operation from prospective date. This Tribunal in the case of Meghna Gupta vs. ACIT (2018) 99 taxmann.com 334 has held that levy of fee u/s 200A in accordance with provision of section 234E cannot be imposed prior to 1.6.2015. The Tribunal strongly referred and relied upon the judgment of Hon'ble Karnataka High Court in the case of Fatheraj Singhvi v. Union of India (2016) 289 CTR 602 wherein the lordship has observed and ....
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....ultaneously, a second proviso was added under section 272A(2) with effect from 1-7-2012.{Para 17] However, if section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and 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 said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as conferring substantive power upon 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 upon the authority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in nature or fee independently simultaneously mode and the manner of its enforceability is also required to be considered and examined. Not only that, but, if the mode and the ma....
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.... observation and discussion, it appears that in all matters, the intimation given in purported exercise of power under section 200A are in respect of fees under section 234E for the period prior to 1-6-2015. As such, it is on account of the intimation given making demand of the fees in purported exercise of power under section 200A, the same has necessitated the appellant-original petitioner to challenge the validity of section 234E. In view of the reasons recorded, when the amendment made under section 200A which has come into effect on 1-6-2015 is held to be having prospective effect. no computation of fee for the demand or the intimation for the fee under section 234E could be made for the TDS deducted for the respective assessment year prior to 1-6- 2015. Hence, the demand notices under section 200A by the respondent authority for intimation for payment of fee under section 234E can be said as without any authority of law and the same are quashed and set aside to that extent.[Para 24] As such, as recorded earlier, it is on account of the intimation received under section 200A for making computation and demand of fees under section 234E. the same has necessitated the appellan....