2020 (4) TMI 478

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....234E was levied for the delay in filing Form Nos.24Q. The Ld. Counsel submits that whether late fee u/s 234E can be levied prior to amendment to section 200A(1)(c) of the Act by Finance Act, 2015 w.e.f. 1.06.2015 while processing the TDS returns is decided by the Coordinate Bench of the Pune Bench, wherein, it was held that prior to 1.06.2015, Assessing Officer was not empowered to charge late fee u/s.234E of the Act while processing the intimations u/s 200A of the Act. The Ld. Counsel submits that the Pune Bench of the Tribunal while holding so considered various judgements on the issue including the Hon'ble Karnataka High Court in the case of Sri Fatheraj Singhvi & Ors. Vs. Union of India, wherein, it was held that levying late fee u/s 234E is not valid in the intimation raising demand prior to 1.6.2015 u/s 200A of the Act. 3. Ld. DR vehemently supported the orders of the authorities below. 4. We have heard the rival submissions, perused the orders of the authorities below. We find that an identical issue came up in batch of appeals before the Pune Bench of this Tribunal and by order dated 23.9.2016 after analyzing various case laws on the issue it was held that, prior to 1....

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....er section 234E of the Act while processing the TDS returns filed by the deductor. 29. The Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) has upheld the constitutional validity of said section introduced by the Finance Act, 2015 w.e.f. 01.06.2015 but was not abreast of the applicability of the said section 234E of the Act by the Assessing Officer while processing TDS statement filed by the deductor prior to 01.06.2015. In such scenario, we find no merit in the plea of learned CIT-DR that the Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) has laid down the proposition that fees under section 234E of the Act is chargeable in the case of present set of appeals. where the Assessing Officer had issued the intimation under section 200A of the Act prior to 01.06.2015. 30. Another aspect of the issue is whether the amendment brought in by the Finance Act, 2015 w.e.f. 01 .06.2015 by way of insertion of clause (C) to section 200A(1) of the Act is clarificatory or is prospective in nature and is not applicable to the pending assessments. Undoubtedly, the provisions of section 234E of the Act were inse....

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....der the existing provisions of section 200A of the Act i.e. prior to 01.06.2015, the Assessing Officer at the time of processing the TDS statements did not have power to charge fees under section 234E of the Act and in order to cover up that, the amendment was made by way of insertion of clause (c) to section 200A of the Act. In such scenario, it cannot be said that insertion made by section 200A(1 )(c) of the Act is retrospective in nature, where the Legislature was aware that the fees could be charged under section 234E of the Act as per Finance Act, 2012 and also the provisions of section 200A of the Act were inserted by Finance (No.2) Act, 2009, under which the machinery was provided for the Assessing Officer to process the TDS statements filed by the assessee. The insertion categorically being made w.e.f. 01.06.2015 lays down that the said amendment is prospective in nature and cannot be applied to processing of TDS returns I statements prior to 01.06.2015. 32. We further find that in recent judgment dated 26.08.2016, the Hon'ble Karnataka High Court in Writ Appeal Nos. 2663-2674/2015(T- IT) & Ors in Sri Fatheraj Singhvi & Ors Vs. Union of India & Ors has quashed ....

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....mations issued by the AO under section 200A of the Act in these appeals are unsustainable and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted. In this view of the matter, we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimations issued under section 200A of the Act in respect of defaults before 01.06.2015 and consequently allow the ground of all appeals raised by the assessees." 6. Similar view has been taken by the Tribunal in the cases of M/s. P.L. Oswal & Co., & Shri Tirathraj J Singh in ITA.No. 4714 & 4715/MUM/2016 by order dated 17.05.2017 and in the case of Anil J. Gorasia v. ITO in ITA.Nos. 3320, 3321 & 3322/MUM/2015 by order dated 30.06.2017. 7. We further find that identical issue came up for adjudication before the Third Member Bench in the case of Emsons Exim Pvt. Ltd., v. ITO (TDS) in ITA.No. 4406 to 4412/Mum/2017 for the A.Y. 2015-16 and the Third Member agreed with the view that fee u/s. 234E of the Act can only be charged in respect of delay in filing the statements of TDS for the period after 01st June, 2015. We also further noticed that following the decisi....