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TMI Blog2020 (12) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... while issuing intimation u/s 200A(1) of the Act, is not sustainable and the same is deleted. There are identical facts for the AY 2013-14 wherein the assessee submitted the TDS statement and TDS return on 02.09.2013 which is prior to the amendment w.e.f 01.06.2015. Hence in the absence of any continuous delay, even after the 01.06.2015 the adjustment made by the AO is not justified and the same is deleted. - Decided in favour of assessee. - ITA Nos.217 to 222/ALLD/2018 And ITA Nos.223 to 224/ALLD/2018 And ITA Nos.225 to 228/ALLD/2018 - - - Dated:- 2-12-2020 - Shri Vijay Pal Rao, Judicial Member For the Appellant : Shri Tanu Singhal, CA For the Respondent : Shri A. K. Singh,Sr. DR ORDER PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER: These twelve appeals by the assessee are directed against twelve orders passed by Commissioner of Income Tax (Appeals), Allahabad all dated 16.02.2018 arising from intimations issued by the Assessing Officer while processing the quarterly TDS statement/TDS return u/s 200A(1) of the Income Tax Act for respective quarters of the assessment year 2013-14 to 2015-16.The assessee has raised common grounds in these appeals. The groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of adjustments made by the AO on account of levy of late fee u/s 234E due to delay in delivering the quarterly TDS statement as well as TDS return for the respective quarters of this assessment year. For the AY 2013-14, the assessee has filed its quarterly TDS statement in Form 24Q as well as TDS return in Form 26Q on 21.06.2013. Therefore, there was a delay in furnishing TDS statement and TDS return in Form No.24Q 26Q for first quarter of FY 2012-13 relevant to the AY 2013-14. 3. The ld. AR of the assessee has submitted that the adjustment made by the AO while processing the TDS statement and TDS return u/s 200A of the Income Tax Act is without jurisdiction and prior to the Amendment to section 200A(1) by Finance Act 2015 w.e.f. 01.06.2015 and there was no power with the AO to make an adjustment on account of levy of late fee u/s 234E of the Act. The ld. AR has further contended that by this Amendment w.e.f. 01.06.2015, Clause (c) to section 200A(1) was inserted thereby the AO is conferred with the power and jurisdiction to make adjustment on account of levy of late fee u/s 234E of the Income Tax Act. The TDS statement and TDS return for the first quarter of F.Y 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve considered the rival submissions as well as relevant materials on record. For the AY 2013-14, there is no dispute that the assessee delivered the quarterly TDS statement as well as TDS return belatedly as it was filed on 21.06.2013. The AO has processed the quarterly TDS statement and return while issuing the intimation u/s 200A of the Income Tax Act on 30.01.2014. The AO has made adjustments on account of late filing fee u/s 234E which has been challenged by the assessee for want of enabling provision and jurisdiction of the AO. Section 200(3) provides submission of quarterly TDS statement as well as return of TDS as an obligation of the deductor. Section 200A(1) of the Act envisages the method to be followed by the AO to process such TDS statement and return. This provision also provides for the adjustments which are required to be made by the AO while processing the TDS statement and return. Though, the charging section for levy of late fee u/s 234E was already in the Statute with effect from the year 2012 however, there was no machinery provision u/s 200A so as to enable the AO to make adjustment on account of levy of late fee u/s 234E of the Act. Undisputedly, Clause (c) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances,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 purported exercise of power under Section 200A by the respondent for the period of the respective assessment year prior to 1.6.2015. However, we make it clear that, if any deductor has already paid the fee after intimation received under Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have decided the same issue in the assessee s own case Sudershan Goyal vs. DCIT (TDS) , in ITA No. 442/Agra/2017 dtd. 09.04.2018 authored by one of us (the Ld. J.M.). The relevant part of the order is reproduced as follows: 3. Heard. The ld. CIT(A), while deciding the matter against the assessee, has placed reliance on Rajesh Kaurani vs. UOI , 83 Taxmann.com 137 (Guj), wherein, it has been held that section 200A of the Act is a machinery provision providing the mechanism for processing a statement of deduction of tax at source and for making adjustments. The ld. CIT(A) has held that this decision was delivered after considering numerous ITAT/High Court decisions and so, this decision in Rajesh Kaurani (supra) holds the field. 4. We do not find the view taken by the ld. CIT(A) to be correct in law. As against Rajesh Kaurani (supra), Shri Fatehraj Singhvi and Others vs. UOI , 73 Taxmann.com 252 (Ker), as also admitted by the ld. CIT(A) himself, decides the issue in 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 Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) are reversed and the fee so levied under section 234E of the Act is cancelled. 6.1 The Tribunal has held that the adjustment made by the AO on account of levy of late fee u/s 234E while issuing the intimation u/s 200A prior to insertion of the Clause (c) w.e.f. 01.06.2015 is not valid and the same was cancelled. 7. Similarly, the Delhi Tribunal in the case of Shri Ashok Kumar (supra) has considered this issue in para no.5 to 8 as under: 5. We have heard the rival submission and perused the relevant material on record. We find that the issue raised in the appeal is whether the Ld. CIT(A) was justified in confirming the levy of late fee under section 234E of the Act in the statement of tax deducted at source filed in form No.26QB and processed under section 200A of the Act. We also note that an amendment has been brought in the Finance Act, 2015, w.e.f., 01/06/2015, ITA No.2039/Del/2018 which paved the way for levying the fee under section 234E of the Act in the statement processed under section 200A of the Act. The learned CIT(A) following the decision of Honble Gujarat High Court in the case of Rajesh Kaurani (supra) where it is held that even prior to 01.06.2015, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Honble Supreme Court in the case of CIT Vs. Vatika Township Private Limited (2014) 367 ITR 466(SC) and CIT Vs. Vegetable Products Ltd. (1973) 88 ITR 192 (SC), the decision favourable to the assessee should be followed. The Coordinate Bench of Agra in the case of Sudarshan Goyal vs. DCIT (TDS) (ITA No. 442/Agra/2017 order dated 09/04/2018) has adjudicated this issue as under: The issue involved in this appeal is as to whether late filing fee u/s 234E of the IT Act has rightly been charged in the intimation dated10.11.2013 issued u/s 200A of the Act while processing the TDS returns/statement, the enabling clause (c) having been inserted in the section w.e.f. 01.06.2015. Before 01.06.2015, there was no enabling provision in the Act u/s 200A for raising demand in respect of levy of fee u/ s 234E. As such, as per ITA No.2039/Del/2018 the assessee, in respect of TDS statement filed for a period prior to 01.06.2015, no late fee could be levied in the intimation issued u/s 200A of the Act. 3. Heard. The Id. CIT(A), while deciding the matter against the assessee, has placed reliance on 'Rajesh Kaurani vs. UOT, 83 Taxmann.com 137 (Guj), wherein, it has been held that sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest. 6. In view of the above, respectfully following 'Shri Fatehraj Singhvi and Others' (supra), 'Sibia Healthcare Pvt. Ltd. vs. DCIT (TDS)', order dated 09.06.2015 passed in ITA No.90/ASR/2015, for A.Y.2013-14, by the Amritsar Bench of the Tribunal, and 'Shri Kaur Chand Jain vs. DCIT, CPC (TDS) Ghaziabad', order dated 15.09.2016, in ITA No.378/ASR/2015, for A.Y. 2012-13, I.T.A No. 442/Agra/2017 S.A. No. 01/Agra/2018 the grievance of the assessee is accepted as justified. The order under appeal is reversed. The levy of the fee is cancelled. 7. Similarly, the Coordinate Bench of Jaipur in the case of M/s Mentor India Ltd Vs DCIT (ITA No. 738/JP/2016 order dated 16/12/2016) has taken a view favourable to the assessee observing as under: 6. Now the assessee is in appeal before us. In ITA No. 438/JP/2016, the only effective ground is against confirmation of late filing fee of ₹ 48,402/'; charged by the A.O. U/s 234E of the Act. In this regard, the Ld. AR of the assessee has reiterated the arguments as made in the written sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention appears, a legislation is presumed not to have a retrospective operation. Respectfully following the above judgments of Hon'ble Supreme Court and Hon'ble Karnataka High Court, we set aside the order of Id. CIT (A) and direct the AO to drop the demand raised of ₹ 4,200/- u/s 234E on statements processed u/s 200A before 01.06.2015. Thus grounds raised by the assessee are allowed. The Hon'ble Jurisdictional High Court in the case of Dundlod Shikshan SansthanVs. Union of India (supra) has decided the issue of vires of Section 234E of the Act. The Hon'ble Karnataka High Court in the case of Fatheraj Singhvi ors. Vs Union of India Ors. (supra) has held that the demand U/s 200A for computation and intimation for the payment of fee U/s 234E could not be made in purported exercise of power U/s 200A for the period of the respective assessment years prior to 1st June, 2015. When the intimation of the demand notices U/s 200A is held to be without authority of law so far as it relates to computation and demand of fee U/s 234E, the question of further scrutiny for testing the constitutional validity of Section 234E would be rendered as an academic exercise. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 and even the AO has issued intimation prior to such amendment therefore, the adjustments made by the AO without any enabling provision is invalid and unjustified. Once the amendment is held to be prospective, the AO gets the jurisdiction/power to make the adjustment only w.e.f. 01.06.2015 and therefore, prior to 01.06.2015 it was not within the jurisdiction of the AO to make the adjustments on account of levy of late fee u/s 234E of the Act. Accordingly, the adjustments made by the AO while issuing intimation u/s 200A(1) of the Act, is not sustainable and the same is deleted. 9. There are identical facts for the AY 2013-14 wherein the assessee submitted the TDS statement and TDS return on 02.09.2013 which is prior to the amendment w.e.f 01.06.2015. Hence in the absence of any continuous delay, even after the 01.06.2015 the adjustment made by the AO is not justified and the same is deleted. 10. The Appeal No.217 to 224 of 2018 involving common and identical issue are decided in favour of the assessee and consequently the adjustment made by the AO on account of levy of late fee u/s 234E is deleted. 11. As regards the Appeal No.225 to 228 of 2018 for the AY 2015-16, the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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