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TMI Blog2019 (9) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... ny assessment year prior to 1.6.2015. It is trite law that the provision which imposes fees or tax and imposes any kind of liability cannot be given retrospective effect, especially when statute itself provides its operation from prospective date. No fee can be levied u/s 234E in terms of section 200A, as admittedly the date of filing of TDS statement and date of intimation are much prior to 1.6.2015. Thus, for all the years impugned before us the fee levied u/s 234E is cancelled/deleted. - Decided in favour of assessee. - ITA Nos.5865/Del/2016, 5866/Del/2016, 5867/Del/2016, 5868/Del/2016, 5869/Del/2016 - - - Dated:- 29-7-2019 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER Assessee by: Shri Ajay Wadhwa, Advocate Department by: Shri Surender Pal, Sr. DR ORDER PER BENCH The aforesaid appeals have been filed by the assessee against separate impugned orders of even date 19.9.2016, passed by Ld. CIT (Appeals) 41 New Delhi in relation to the order passed u/s 200A, levying penalty late filing fee u/s. 234E for the various quarters of the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.14 24.09.14 3 5867/D/16 27,320 2014-15 Q1 22.09.14 25.09.14 4 5868/D/16 56,600 2014-15 Q2 25.07.14 29.07.14 5 5869/D/16 14,480 2014-15 Q4 25.07.14 24.09.14 4. Section 200A was inserted in the Statute w.e.f. 1.4.2010, which provides special provision for processing of TDS statement and also sets out various kinds of adjustments which can be made while processing the statement. The relevant provision of section 200A, prior to the amendment brought by the Finance Act 2015 w.e.f. 1st June, 2015 read as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted for any assessment year prior to 1.6.2015. It is trite law that the provision which imposes fees or tax and imposes any kind of liability cannot be given retrospective effect, especially when statute itself provides its operation from prospective date. This Tribunal in the case of Meghna Gupta vs. ACIT (2018) 99 taxmann.com 334 has held that levy of fee u/s 200A in accordance with provision of section 234E cannot be imposed prior to 1.6.2015. The Tribunal strongly referred and relied upon the judgment of Hon ble Karnataka High Court in the case of Fatheraj Singhvi v. Union of India (2016) 289 CTR 602 wherein the lordship has observed and held as under :- Section 234E has come into force on 1-7-2012. Therefore one may at the first blush say that since section 234E is a charging section for fee. the liability was generated or had accrued. if there was failure to deliver or cause to be delivered the statement/s of TDS within the prescribed time. But section 234E cannot be read in isolation and is required to be read with the mechanism and the mode provided for its enforcement. As observed hereinabove. when section 234E was inserted in the Act simultaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conferring substantive power upon the authority. It is true that, a regulatory mechanism by insertion of any provision made in the statute book, may have a retroactive character but, whether such provision provides for a mere regulatory mechanism or confers substantive power upon the authority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in nature or fee independently simultaneously mode and the manner of its enforceability is also required to be considered and examined. Not only that, but, if the mode and the manner is not expressly prescribed, the provisions may also be vulnerable. All such aspects will be required to be considered before one considers regulatory mechanism or provision for regulating the mode and the manner of recovery and its enforceability as retroactive. If at the time when the fee was provided under section 234E, the Parliament also provided for its utility for giving privilege under section 271H(3) that too by expressly putting bar for penalty under section 272A by insertion of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the reasons recorded, when the amendment made under section 200A which has come into effect on 1-6-2015 is held to be having prospective effect. no computation of fee for the demand or the intimation for the fee under section 234E could be made for the TDS deducted for the respective assessment year prior to 1-6- 2015. Hence, the demand notices under section 200A by the respondent authority for intimation for payment of fee under section 234E can be said as without any authority of law and the same are quashed and set aside to that extent.[Para 24] As such, as recorded earlier, it is on account of the intimation received under section 200A for making computation and demand of fees under section 234E. the same has necessitated the appellant to challenge the constitutional validity of section 234E. When the intimation the demand notices under section 200A is held to be without authority of law so far as it relates to computation and demand of fee under section 234E. it is found that the question of further scrutiny for testing the constitutional validity of section 234E would be rendered as an academic exercise because there would not be any cause on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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