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TMI Blog2022 (9) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... nature and the mechanism for computing the late fee was provided by the Parliament only w.e.f. 01.06.2015. Therefore, late fees u/s 234E of the Act can be levied only prospectively w.e.f. 01.06.2015.- Appeal of assessee allowed. - ITA Nos.92 to 108/PUN/2021 - - - Dated:- 7-9-2022 - Shri S. S. Godara, Judicial Member And Shri Inturi Rama Rao, Accountant Member For the Assessee : Shri Kishor B. Phadke For the Revenue : Shri Ramnath P. Murkunde ORDER PER BENCH : These are the appeals filed by the assessee against the separate orders of ld. Commissioner of Income Tax (Appeals)-10, Pune dated 23.10.2019 for the assessment years 2013-14, 2014-15 and 2015-16 respectively. 2. Since the identical facts and common is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates to the levy of late fees u/s 234E of the Act. The ACIT, CPC-TDS, Ghaziabad had levied penalty u/s 234E of the Act for belated submission of tax deducted at source statement during the financial year 2012-13. It is only w.e.f. 01.06.2015 an amendment was made u/s 200A of the Act providing that fee u/s 234E could be computed at the time of processing of the return of income and intimation could be issued specifying the same payable by the dedutor as fee u/s 234E of the Act. The Hon ble Karnataka High Court in the case of Fatheraj Singhvi vs. Union of India, 73 taxmann.com 252 held that the provisions of section 234E of the Act are substantive in nature and the mechanism for computing the late fee was provided by the Parliament only w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meet with the test of quid pro quo. 21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other mechanism provided for computation of fee and failure for payment of fee under Section 200A which has been brought about with effect from 1.6.2015 cannot be said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as without any authority of law and the same are quashed and set aside to that extent. 25. 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 of 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, we find 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 part of the petitioners to continue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 200A of the Act for the TDS for the period prior to 01.04.2015 is permitted to be reopened for claiming refund. The judgment will have prospective effect accordingly. It is further observed that the question of constitutional validity of Section 234E shall remain open to be considered by the Division Bench and shall not get concluded by the order of the learned Single Judge. 8. The ratio of the above decision was followed by the Coordinate Bench of Pune Tribunal in the case of (i) Gajanan Constructions vs. DCIT, 73 taxmann.com 380, (ii) Maharashtra Cricket Association, Pune vs. DCIT, 74 taxmann.com 6 and (iii) Webtrust Co. In (India) Pvt. Ltd. ACIT, CPC (TDS) in ITA Nos.1818 1819/PUN/2018 for Assessment Years 2013-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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