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TMI Blog2017 (5) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... - Decided in favour of assessee. - ITA No. 4714/MUM/2016, ITA No.4715/MUM/2016 - - - Dated:- 17-5-2017 - Shri C. N. Prasad, Judicial Member And Shri Ramit Kochar, Accountant Member Appellant by : Shri Kapil D. Talreja Ms. Hema R. Bhanushali Respondent by : Shri B. S. Bist ORDER Per C. N. Prasad (JM) These two appeals are filed by different Assessees against the orders of the Ld. CIT (Appeals)-1, Mumbai dated 21.3.2016 for the assessment year 2013-14 arising out of the Intimation passed u/s 200A of the I.T. Act by the Assessing Officer. Since the issue involved in these appeals is common, these appeals are clubbed, heard together and are being disposed of by this common order for the sake of convenience. 2. The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. 4. The Ld. DR places reliance on the orders of the authorities below. 5. We have heard the rival submissions, perused the orders of the authorities below and the decision of the Pune Bench. In a batch of appeals, the Coordinate Bench of the Pune Tribunal by order dated 23.9.2016 analysing various case laws on the issue held that, prior to 1.6.2015 late fee u/s 234E cannot be charged while processing quarterly return u/s 200A of the Act observing as under : 28. The perusal of Memo explaining the provision relating to insertion of clause (c) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements filed by a person did not exist when section 234E of the Act was inserted by the Finance Act, 2012. The power to charge fees under the provisions of section 234E of the Act while processing the TDS statements, was dwelled upon by the Legislature by way of insertion of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. Accordingly, we hold that where the Assessing Officer has processed the TDS statements filed by the deductor, which admittedly, were filed belatedly but before insertion of clause (c) to section 200A(1) of the Act w.e.f. 01 .06.2015, then in such cases, the Assessing Officer is not empowered to charge fees under section 234E of the Act while processing the TDS returns filed by the dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the Legislature to provide mechanism for the Assessing Officer to charge and collect such fees. In the absence of enabling provisions, the Assessing Officer while processing the TDS statements, even if the said statements are belated, is not empowered to charge the fees under section 234E of the Act. The amendment was brought in by the Finance Act, 2015 w.e.f. 01 .06.2015 and such an amendment where empowerment is given to the Assessing Officer to levy or charge the fees cannot be said to be clarificatory in nature and hence, applicable for pending assessments. 31. The Hon'ble Supreme Court in CIT Vs. Vatika Township Pvt. Ltd. (supra) has explained the general principle concerning retrospectivity and have held that of the var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer under 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 the Act is not valid and the same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law. 6. Following this order of the Pune Bench, the Coordinate Bench of the Mumbai Bench in the case of Asian Pipes Profiles Pvt. Ltd. Vs. Assessing Officer, TDS Ward in ITA Nos.4740 and 4741/Mum/2016 dated 1.3.2017 held as under : 6.2 Following the above referred decision of the Hon ble ITAT Pune Bench in the case of Gajanan Constructions and others in ITA Nos. 1292 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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