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TMI Blog2018 (7) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case. B The averments made before the first appellate authority, by way of written submissions have not been taken into account by the said authority. C The provisions of Section 234E is conferring arbitrary powers for imposition of late filing fee without providing the assesse an opportunity to explain the reasons for the delayed filing of the TDS statements. The constitutional validity of Section 234E is being considered by the various High Courts. The fee levied under Section 234E is akin to a penalty. So much so, the provisions under Section 234E to the extent it provides for automatic levy of late fee without taking into account the circumstances that led to the delayed filing of the TDS statements is arbitrary and illegal. D: The delayed filing in the present case is not intentional. The appellant as stated earlier is the Headmistress of a High School. Salary is being disbursed from the treasury on the basis of the bill submitted by the appellant herein. Tax is being deducted by the treasury while making such payments. But there was mismatch in the TDS statements submitted by the treasury on account of which the filing of TDS statements by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssly put bar for penalty under Section 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 for making of demand of such fee under Section 200A payable under Section 234E. Hence, considering the aforesaid peculiar facts and circumstances, we are unable to accept the contention of the learned counsel for respondent - revenue that insertion of clause (c) to (f) under Section 200A (1) should be treated as retroactive 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 provision of statute is to be read as having prospective effect and not retrospective effect. Under the circumstances, we find that substitution made by clause (c) to (f) of sub-section (1) of Section 200A can be read as having prospective effect and not having retroactive character or effect. Resultantly, the demand under Section 200A for computation and intimation for the payment of fee under Section 234E could not be made in pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Q4 04.11.2015 3.1 As there were delays in filing these statements, the TDS Central Processing Zone, Ghaziabad imposed fees under section 234E of the Income Tax Act, 1961 as per intimations u/s 200A of the Income Tax Act, 1961, as under:- Financial Year Quarter No. Amount levied u/s. 234E Date of intimation 2012-13 Q2 ₹ 11,250/- 20.11.2015 2012-13 Q3 ₹ 15,000/- 20.11.2015 2012-13 Q4 Rs.2,00,010/- 28.11.2015 2013-14 Q1 ₹ 86,150/- 12.11.2015 2013-14 Q2 ₹ 84,150/- 12.11.2015 2013-14 Q3 ₹ 4,150/- 12.11.2015 2013-14 Q4 Rs.1,08,600/- 12.11.2015 2014-15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of section 234E . Prior to 1st June 2015, there was no enabling provision therein for raising a demand in respect of levy of fees u/s 234E of the Act. 8.2 This issue has been elaborately considered by the Amritsar Bench of the Tribunal in the case of Sibia Healthcare (P) Limited Vs. Deputy Commissioner of Income Tax (2015) 61 Taxmann.com 70 and held that levy of fee u/s. 234E is beyond the scope of permissible adjustments contemplated u/s.200A. The relevant portion of the order of the Amritsar Bench of the Tribunal reads as follows: In view of the above discussions, in our considered view, the adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments, contemplated under section 200A. This intimation is an appealable order under section 246A(1)(a), and, therefore, the CIT(A) ought to have examined legality of the adjustment made under this intimation in the light of the scope of the section 200A. Learned CIT(A) has not done so. He has justified the levy of fees on the basis of the provisions of Section 234E. That is not the issue here. The issue is whether such a levy could be effected in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had also declared that if the impugned notices under Section 200A are set aside, so far as it relates to computation and intimation for payment of fee under Section 234E, the appellant-petitioners would not press the challenge to the constitutional validity of Section 234E of the Act. But, they submitted that the question of constitutional validity of Section 234E may be kept open to be considered by the Division Bench and the Judgment of the learned Single Judge may not conclude the constitutional validity of Section 234E of the Act. (Para 25) Under these circumstances, no further discussion would be required for examining the constitutional validity of Section 234E of the Act. Save and except to observe that the question of constitutional validity of Section 234E of the Act before the Division Bench of this Court shall remain open and shall not be treated as concluded. (Para 26) In view of the aforesaid observations and discussion, the impugned notices under Section 200A of the Act for computation and intimation for payment of fee under Section 234E as they relate to for the period of the tax deducted prior to 1.6.2015 are set aside. It is clarified that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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