TaxTMI 
TaxTMI 
2019 (1) TMI 1739
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.... 148 to 150/Ind/2018, 151/Ind/2018, 152 to 159/Ind/2018, 88 to 90/Ind/2018 Hon'ble Kul Bharat, Judicial Member And Hon'ble Manish Borad, Accountant Member Appellants by: Shri Prakash Jain & Shreya Jain, CAs Shri Harsh Vijayvargiya, CA Shri Pinkesh Ghatiya CA Shri S.N. Agrawal, CA Shri Sunil B. Thakkar, CA Respondent by: Shri V. J. Boricha, Sr. DR ORDER PER BENCH: The above captioned bunch of 93 appeals are at the instance of respective assessees and are directed against the orders of Ld. Commissioner of Income Tax(Appeals), Indore, (in short 'CIT(A)'). As the issue raised in all these appeals are similar, these were heard together and are being disposed of by this common order for the sake of convenience and brevity. 2. From perusal of the grounds we find that only one issue needs to be adjudicated as to whether the Revenue authorities were justified in levying the late fees u/s 234E of the Act while processing the statement of tax deducted at source u/s 200A of the Act ( before the amendment was brought in w.e.f. 01.06.2015 in the provisions of section 200A of the Act). 3. Brief facts common in all these appeals are that the appellant was required to file th....
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.... case of CIT vs. Vatika Township 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 there is a cleavage of opinion between different Courts on an issue the one in favour of the assessee needs to be followed. Accordingly, in the above referred decisions of the Tribunal the view favouring the assessee taken by the Hon'ble High Court of Karnataka in the case of Fatehraj Singhvi(supra) has been followed holding that amendment brought in w.e.f. 01.06.2015 in section 200A of the Act is prospective in nature, therefore, no computation for fee for demand or intimation u/s 234E of the Act could have been made for TDS deducted in respective of statements prepared/procured prior to 01.06.2015 and processed u/s 200A of the Act. 8. Ld. Counsels for the assessees further placed reliance on the decisions of I.T.A.T., Indore Bench in the case of State Bank of India, Genda Chowk and others dated 13.11.2018 and M/s. Madhya Pradesh Power Transmission Ltd. & others in ITA Nos.740/Ind/2017 & others, order dated 20.12.2018 wherein the similar issue has been adjudicated and dec....
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....w.e.f. 01.06.2015 in clause (c),(d) & (e) of sub-section (1) of section 200A of the Act are prospective in nature, therefore, fee u/s 234E 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 200A of the Act while processing the TDS returns/statement, the enabling clause (c) having been inserted in the section w.e.f. 01.06.2015. 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 statement filed for a period prior to 01.06.2015, no late fee could be levied in the intimation issued u/s 200A 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 that section 200A of the Act is a machinery provision providing the mechanism for proce....
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....e payment under protest." 6. In view of the above, respectfully following 'Shri 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 Tribunal, 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 cancelled." 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 ITA No. 438/JP/2016, the only effective ground is against confirmation 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 assessee has reiterated the arguments as made in the written submissions and has further submitted that the issue is no more res-integra. He placed reliance on the decision of the ITAT, Ahmadabad decision in the ca....
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....High Court, we set aside the order 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 of Dundlod Shikshan Sansthan Vs. Union of India (supra) has decided the issue of vires of Section 234E of the Act. The Hon'ble Karnataka High Court in the case of Fatheraj Singhvi & ors. Vs Union of India & Ors. (supra) has held that the demand U/s 200A 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 relates to computation and demand of fee U/s 234E, the question of further scrutiny for testing the constitutional validity of Section 234E would be rendered as an academic exercise. We find that the Hon'ble Jurisdictional High Court in the case of Dundlod Shikshan Geeta Star Hotels & Resorts Pvt. Ltd. Vs. DCIT Sansthan Vs. Union of India (supra) has also cons....
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....d 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 provision which could not be applied retrospectively, unless it is expressly provided in the Act, to levy the late fee for any delay in filing the TDS statement for the period prior to 01.06.2015. The counsel for the assessee has rightly contended that in the absence of enabling provisions u/s 200A 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) 289 CTR 0602 (Karn) (HC). The decisions relied on by the 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 pertains 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 issue in the assessee's own case 'Sudershan Goyal vs. DCIT (TDS)', in IT....
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....cise of power under Section 200A by the respondent for the period of the respective assessment year prior to 1.6.2015. However, we make it clear that, if any deductor has already paid the fee after intimation received under Section 200A, the aforesaid view will not permit the Group of SBI and Ors. Deductor to reopen the said question unless he has made payment under protest." 6. In view of the above, respectfully following 'Shri 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 Tribunal, 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 justified. The order under appeal is reversed. The levy of the fee is cancelled." 11. In the above view, respectfully following 'Shri Fatehraj Singhvi and Ors' (Supra), 'Sibia Healthcare Pvt. Ltd. Vs. DCIT (Supra), 'Shri Kaur Chand Jain vs. DCIT', (Supra), and our own finding in the case of 'Sudershan Goyal' (Supra), we accept the grievance of the a....