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TMI Blog2019 (8) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... PER BENCH: The above mentioned appeals have been filed by the assessee against the order dated 06.08.2018 passed by the Commissioner of Income Tax (Appeals)-1, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Y. 2015-16. Since the common question of law and facts are involved in the present appeal, therefore, all the appeals are taken up together for adjudication. 2. The assessee has raised the following grounds: - 1. On the given facts, circumstances, ad judicial pronouncements Hon. CIT(A) erred in upholding the order of Ld. AO of levying late filing fee under section 234E, such confirmation of penalty is bad in law and liable to be deleted. 2. on the given facts circumstances, and judicial pronouncements Hon. CIT(A) erred in confirmation the penalty for late filing under section 234E, for a period relating to financial year 2014-15, even though no power was conferred on the AO as per provisions of Section 200A, hence levy of such fee/penalty is without jurisdiction and bad in law and liable to be deleted. 3. the appellant prays to add, amend and alter or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand, the Ld. Representative of the Department has strongly relied upon the order passed by the CIT(A) in question. The factual position is not in dispute which has been reflected above in the table while discussing brief facts of the case. The only question arises before us whether the fee u/s 234E is not leviable earlier to 01.06.2015 or subsequent to 01.06.2015. Here, we are inclined to discuss the finding by the Hon ble ITAT in the case of M/s. Bathija International (supra) and the relevant finding has been given in para no, 6 which is hereby reproduced as under: - 6. We have carefully considered the rival submissions. The late fee envisaged in Section 234E of the Act has been charged by the Assessing Officer in this case while processing the TDS statement under Section 200A of the Act on 14.06.2013, which is indeed prior to 01.06.2015. Ostensibly, a perusal of bare provisions of Section 200A of the Act show that prior to 01.06.2015, it did not empower the Assessing Officer to levy the fee prescribed in Section 234E of the Act, while processing the statement of TDS. Thus, the stand of the assessee is borne out of the bare provisions of the Act, as it stood a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consequent issuance of the intimation to the deductor, determining the amount payable or refundable by it. But in the initial provisions of section 200A, there was no reference for fee payable under section 234E. On 1.7.2012, section 234E provided for levying of fee of ₹ 200/- per day for each day of default in filing the TDS. We find merit in the argument of the ld.AR that the provisions of section 200A(1)(c) of the Act there was no authority or competence or jurisdiction on the part of the concerned officer or department to compute or determine the fee under section 234E in respect of assessment which falls prior to 1.6.2015 as the said provisions was also brought on the statute book w.e.f. 1.6.2015 and consequently no demand u/s 234E should have been determined and raised upon the assessee. In the case of Fatheraj Singhvi V/s Union of India 2016] 73 taxmann.com 252 (Karnataka), the Hon ble Karnataka High Court has decided an identical issue wherein it has been held that no fee under section 234E was payable in respect of period which relates to or falls prior to 1.6.2015. The relevant extract is reproduced below : 27. In view of the aforesaid observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the assessee. The only objection of the ld. CIT(A) is that this decision and others to the same effect have been taken into consideration by the Hon ble Gujarat High Court while passing Rajesh Kaurani (supra). However, while observing so, the ld. CIT(A) has failed to take into consideration the settled law that where there is a cleavage of opinion between different High Courts on an issue, the one in favour of the assessee needs to be followed. It has so been held by the Hon ble Supreme Court in CIT vs. Vegetable Products Ltd. , 88 ITR 192 (SC). It is also not a case where the decision against the assessee has been rendered by the Jurisdictional High Court qua the assessee. 5. In Shri Fatehraj Singhvi and Others (supra) it has been held, inter alia, as follows: 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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