Fee under Section 234E (of Income Tax Act, 1961) cannot be levied in TDS statements processed before June 1, 2015

Case Name:

The specific case law name is not provided in the given content. However, it appears to be a decision by the Income Tax Appellate Tribunal involving multiple appellants.

Key Takeaways:

1. The amendment to Section 200A (of Income Tax Act, 1961), effective from June 1, 2015, is prospective in nature.

2. No computation for fee or demand under Section 234E (of Income Tax Act, 1961) can be made for TDS statements processed under Section 200A (of Income Tax Act, 1961) before June 1, 2015.

3. When there are conflicting views from different High Courts, the view favoring the assessee should be adopted.

Issue:

The central legal question in this case is: Can the fee under Section 234E (of Income Tax Act, 1961) be levied in statements processed under Section 200A (of Income Tax Act, 1961) before June 1, 2015?

Facts:

1. Multiple assessees filed appeals against orders of the Commissioner of Income Tax (Appeals).

2. The appeals were related to the levy of late fees under Section 234E (of Income Tax Act, 1961).

3. The statements in question were processed under Section 200A (of Income Tax Act, 1961) before June 1, 2015.

4. An amendment to Section 200A (of Income Tax Act, 1961) came into effect on June 1, 2015, enabling the revenue authorities to raise demand for fees under Section 234E (of Income Tax Act, 1961).

Arguments:

The specific arguments of each party are not detailed in the given content. However, it appears that:

1. The assessees argued that the fee under Section 234E (of Income Tax Act, 1961) cannot be levied for statements processed before June 1, 2015.

2. The revenue authorities likely argued for the validity of levying the fee even for statements processed before the amendment.

Key Legal Precedents:

1. Fatehraj Singhvi vs. UOI (2016) 73 Taxmann.com 252 (Karn) (HC): Favored the assessee's position.

2. Rajesh Kaurani vs. UOI (2017) 83 Taxmann.com 137 (Guj): Held against the assessee.

3. CIT vs. Vatika Township Pvt. Ltd. (2014) 367 ITR 466(SC): Discussed the principle of prospective application of legislation.

4. CIT vs. Vegetable Products Ltd. (1973) 88 ITR 192(SC): Established that when there's a difference of opinion between courts, the view favoring the assessee should be adopted.

Judgement:

The ITAT ruled in favor of the assessees, holding that:

1. The amendment to Section 200A (of Income Tax Act, 1961) effective from June 1, 2015, is prospective in nature.

2. No computation for fee or demand under Section 234E (of Income Tax Act, 1961) can be made for TDS statements processed under Section 200A (of Income Tax Act, 1961) before June 1, 2015.

3. The levy of fees under Section 234E (of Income Tax Act, 1961) in the cases under consideration should be deleted.

FAQs:

Q1: What is Section 234E (of Income Tax Act, 1961)?

A1: Section 234E (of Income Tax Act, 1961) imposes a fee for late filing of TDS statements.

Q2: When did the amendment to Section 200A (of Income Tax Act, 1961) come into effect?

A2: The amendment came into effect on June 1, 2015.

Q3: What does "prospective in nature" mean in this context?

A3: It means the amendment applies only to future cases, not to cases before June 1, 2015.

Q4: Does this judgment apply to all cases of late fees under Section 234E (of Income Tax Act, 1961)?

A4: No, it specifically applies to cases where TDS statements were processed under Section 200A (of Income Tax Act, 1961) before June 1, 2015.

Q5: What should assessees do if they've paid fees under Section 234E (of Income Tax Act, 1961) for pre-June 2015 statements?

A5: While I can't provide legal advice, assessees might want to consult with a tax professional about the possibility of seeking a refund based on this judgment.

The above captioned appeals are at the instance of respective assessees and are directed against the respective orders of Ld. Commissioner of Income Tax(Appeals), (in short ‘CIT(A)’). As the issue raised in all these appeals are similar, these were heard together and are being disposed of by this common order for the sake of convenience and brevity.

2. From perusal of the grounds we find that only one issue needs to be adjudicated as to whether the Revenue authorities were justified in levying the late fees u/s 234E (of Income Tax Act, 1961) while processing the statement of tax deducted at source u/s 200A (of Income Tax Act, 1961) before the amendment was brought in w.e.f. 01.06.2015 in the provisions of section 200A (of Income Tax Act, 1961).

3. Brief facts common in all these appeals are that the appellant

was required to file the statement of tax deducted at source for the

respective quarter but failed to do so within the due date prescribed

in the law for filing such quarterly TDS returns. As per the

provisions of section 234E (of Income Tax Act, 1961), fee for default in furnishing

the statement is leviable if the statement of TDS are not delivered

within the time prescribed in sub-section (3) of section 200 (of Income Tax Act, 1961) or the

proviso to sub-section (3) of section 206C (of Income Tax Act, 1961).

4. The revenue authorities have levied the late fees for default in

furnishing the statement in the processing of statement of tax

deducted at source prepared u/s 200A (of Income Tax Act, 1961). Against the levy

of late fee u/s 234E (of Income Tax Act, 1961) in the statement processed u/s 200A (of Income Tax Act, 1961) of the

Act,appeal was preferred by the assessee(s) for respective quarters

for the respective assessment years before Ld. CIT(A) pleading that

before the amendment was brought in by the Finance Act, 2015

w.e.f. 01.06.2015,the revenue authorities were not having the power

to levy the late fees u/s 234E (of Income Tax Act, 1961) in the statement processed

u/s 200A (of Income Tax Act, 1961).

5. However, assessee failed to succeed in all these 4 appeals before

Ld. CIT(A) and now are in appeals before the Tribunalraising the

above referred common issue.

6. At the outset, Ld. counsels for respective assessees submitted

that the common issue is squarely covered in favour of the assessee

by the following decisions of the Coordinate Bench:

(i) Mentor India Limited vs. DCIT (ITANo.738/JP/2016

order dated 16.12.2016)

(ii) Sudershan Goyal vs. DCIT (TDS) (ITANo.442/Agra/2017

order dated 09.04.2018)

(iii) State Bank of India, Gwalior vs. CIT(A)

(ITANo.03/Ag/2018 order dated 31.05.2018.)

(iv) State Bank of India, Genda Chowk and others vs.

DCIT(TDS), (Income-tax Act, 1961, Nos. 727 &

737/Ind/2017 and others dated 13.11.2018.)

(v) M/s. Madhya Pradesh Power Transmission Ltd. &

others in ITA Nos.740/Ind/2017 & others, order

dated 20.12.2018

(vi) Bhupesh Kumar J. Sanghvi & others in ITANo.15/Ind/

2018 & others, order dated 22.01.2019.

(vii) Indore School of Social Work & others in ITANo.117 of

2019 and others, order dated 20.02.2020.

7. Ld. Counsels further submitted that in the above referred

decisions of the Tribunal, Judgments of Hon'ble High Court of

Karnataka in the case of Fatehraj Singhvi vs. UOI (2016) 73

Taxmann.com 252 (Karn) (HC) favouring the assessee and the

judgment of Hon'ble High Court of Gujarat in the case of Rajesh

Kaurani vs. UOI (2017) 83 Taxmann.com 137 (Guj) held against the

assessee were duly considered and thereafter following the

judgment of Hon'ble Apex Court in the case of CIT vs. Vatika

Township Pvt. Ltd. (2014) 367 ITR 466(SC) and the judgment of

Apex Court in the case of CIT vs. Vegetable Products ltd. (1973) 88

ITR 192(SC) Hon'ble Tribunal took a view that if there is a cleavage

of opinion between different Courts on an issue the one in favour of

the assessee needs to be followed. Accordingly, in the above referred

decisions of the Tribunal the view favouring the assessee taken by

the Hon'ble High Court of Karnataka in the case of Fatehraj

Singhvi(supra) has been followed holding that amendment brought

in w.e.f. 01.06.2015 in section 200A (of Income Tax Act, 1961) is prospective in

nature, therefore, no computation for fee for demand or intimation

u/s 234E (of Income Tax Act, 1961) could have been made for TDS deducted in

respective of statements prepared/procured prior to

01.06.2015and processed u/s 200A (of Income Tax Act, 1961).

8. Ld. Counsels for the assessees further placed reliance on the

decisions of I.T.A.T.,Indore Bench in the case of State Bank of India,

Genda Chowk and others dated 13.11.2018and M/s. Madhya

Pradesh Power Transmission Ltd. & others in ITA

Nos.740/Ind/2017 & others, order dated 20.12.2018,

Bhupesh Kumar J. Sanghvi & others in ITANo.15/Ind/2018 &

others, order dated 22.01.2019 and Indore School of Social Work &

others in ITANo.117 of 2019 and others, order dated

20.02.2020wherein the similar issue has been adjudicated and

decided in favour of the assessee.

9. Per contra Ld. Departmental Representative (DR) failed to

controvert the submissions made by Ld. Counsels for the assessees.

10. We have heard the rival contentions and perused the record

placed before us and carefully gone through various judgments

referred and relied by the Ld. Counsels for above captioned

assessees. The common issue raised in all these bunches of

appeals is that whether the ld. CIT(A) was justified in confirming the

levy of late fee u/s 234E (of Income Tax Act, 1961) in the statement of tax deducted

at source processed u/s 200A (of Income Tax Act, 1961),even when the amendment

brought in the Finance Act 2015 w.e.f. 01.06.2015 paved the way

for levying the fee u/s 234E (of Income Tax Act, 1961) in the statement processed

u/s 200A (of Income Tax Act, 1961).

11. From perusal of the above issue we find that the same has been

adjudicated by us in the case of State Bank of India, Genda Chowk

and others dated 13.11.2018(supra)and M/s. Madhya Pradesh

Power Transmission Ltd.& others in ITA Nos.740/Ind/2017

& others, order dated 20.12.2018(supra), Bhupesh Kumar J.

Sanghvi & others in ITANo.15/Ind/2018 & others, order dated

22.01.2019(supra) and Indore School of Social Work & others in

ITANo.117 of 2019 and others, order dated 20.02.2020after

examining similar facts as well as various judicial pronouncements.

The revenue authorities failed to controvert the contention of Ld.

counsels for the assessees that the common issue raised in all

these bunch of 4 appeals are squarely covered in favour of

assessees by the decisions in the case of State Bank of India, Genda

Chowk and others dated 13.11.2018(supra) and M/s. Madhya

Pradesh Power Transmission Ltd. & others in ITA

Nos.740/Ind/2017& others,order dated 20.12.2018(supra),

Bhupesh Kumar J. Sanghvi & others in ITANo.15/Ind/2018 &

others, order dated 22.01.2019(supra)and Indore School of Social

Work & others in ITANo.117 of 2019 and others, order dated

20.02.2020 authored by us. Relevant portion of the decision given

by us in the case of State Bank of India, Genda Chowk and others

dated 13.11.2018 (supra) reads as follows:

9. We have heard the rival contentions and perused the record

placed before us. The common issue raised in all these bunches of

appeals is that whether the ld. CIT(A) was justified in confirming the

levy of late fee u/s 234E (of Income Tax Act, 1961) in the statement of tax deducted

at source processed u/s 200A (of Income Tax Act, 1961), even when the amendment

brought in the Finance Act 2015 w.e.f. 01.06.2015 paved the way for

levying the fee u/s 234E (of Income Tax Act, 1961) in the statement processed u/s

200A of the Act.

10. We find that the above issue has consistently being

adjudicated by the Coordinate Bench of the Tribunal and

consistent view has been taken that the amendment brought in

the Finance Act 2015 w.e.f. 01.06.2015 in clause (c),(d) & (e) of

sub-section (1) of section 200A (of Income Tax Act, 1961) are prospective in

nature, therefore, fee u/s 234E (of Income Tax Act, 1961) cannot be levied in the

statement processed u/s 200A (of Income Tax Act, 1961) up to 31.05.2015.

11. Coordinate Agra Bench in the case of Sudarshan Goyal

(supra) adjudicating very same issue observed as follows:

“The issue involved in this appeal is as to whether late filing fee

u/s 234E (of Income Tax Act, 1961) has rightly been charged in the

intimation dated 10.11.2013 issued u/s 200A (of Income Tax Act, 1961) 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 (of Income Tax Act, 1961). As

such, as per 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 Income Tax Act, 1961).

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 I.T.A No. 442/Agra/2017 & S.A. No.

01/Agra/2018 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 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, I.T.A No.

442/Agra/2017 & S.A. No. 01/Agra/2018 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 (of Income Tax Act, 1961) can be read as having prospective effect and not having retroactive character or effect. Resultantly, the demand under Section 200A (of Income Tax Act, 1961) for computation and intimation for the payment of fee under Section 234E (of Income Tax Act, 1961) could

not be made in purported exercise of power under Section 200A (of Income Tax Act, 1961)

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 (of Income Tax Act, 1961), the 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.”

12. Similarly Coordinate Jaipur Bench in the case of

M/s. Mentor India Ltd. (supra) took the same view

favouring the assessee observing as follows:

“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 Rs. 48,402/'; charged by the A.O. U/s 234E (of Income Tax Act, 1961)

of the Act. In this regard, the Ld. AR of the assessee has

reiterated the arguments as made in the written submissions

and has further submitted that the issue is no more res-integra.

He placed reliance on the decision of the ITAT, Ahmadabad

decision in the case of Perfect Crop science Pvt. Ltd. Vs DCIT in

ITA No. 2957 to 2963/Ahd/2015 and the decision of the Hon'ble

Karnataka High Court in the case of Fatheraj Singhvi & ors. Vs

Union of India &Drs. (2016) 289 CTR (Kar) 602.

7. On the contrary, the Id DR has opposed the submissions

and supported the orders of the authorities below. She relied on

the decision of the Hon'ble Jurisdictional High Court rendered in

the case of Dundlod Shikshan Sansthan Vs. Union of India

(2015) 63 taxmann.com 243 (Raj.).

8. We have heard the rival contentions of both the parties,

perused the material available on the record and also gone

through the orders of the authorities below. Recently the

Coordinate Bench of Jaipur ITAT in the case of M/s. Sandeep

Jhanwar Advisory Services Pvt. Ltd. Vs. The TDS CPC,

Gaziabad in ITA No. 722 & 723/JP/2016 for the A.Y. 2013-14 /

Q-3 & 4 has allowed the appeal of the assessee by observing as

under:-

"3.5. We have heard rival contentions, perused the material

available on record and gone through the orders of the

authorities below. We have also gone through the case laws

relied upon by the ld. Counsel. We find merit into the contention

of ld. Counsel that he jurisdictional High Court has decided the

validity of section 234E (of Income Tax Act, 1961), but has not decide the issue of power of

AO for levy of tax under section 234E (of Income Tax Act, 1961) in the judgment rendered

in the case of M/s. Dundlod Shikshan Sansthan and Others

(supra) as relied by ld. CIT (A). We have considered the recent

decision of Hon'ble Karnataka High Court in the case of Shri

Fatheraj Singhvi & Ors (supra) wherein the issue of levy of fees

u/s 234E (of Income Tax Act, 1961) on statements processed u/s 200A (of Income Tax Act, 1961) before 01.06.2015

has been categorically discussed by the Hon'ble High Court and

in para 24 of the said order it was held that "no demand for fee

u/s 234E (of Income Tax Act, 1961) can be made in intimation issued for TDS deducted

u/s 200A (of Income Tax Act, 1961) before Geeta Star Hotels & Resorts Pvt. Ltd. Vs. DCIT

01.06.2015". We have also gone through the judgment of

Hon'ble Supreme Court in the case of CIT vs. Vatika Township

Pvt. Ltd. (supra) wherein the Hon'ble Apex Court has discussed

in detail the general principle of concerning retrospectively and

held that unless contrary intention 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 ld. CIT

(A) and direct the AO to drop the demand raised of Rs. 4,200/-

u/s 234E (of Income Tax Act, 1961) on statements processed u/s 200A (of Income Tax Act, 1961) before

01.06.2015. Thus grounds raised by the assessee are allowed."

The Hon'ble Jurisdictional High Court in the case of Dundlod

Shikshan Sansthan Vs. Union of India (supra) has decided the

issue of vires of Section 234E (of Income Tax Act, 1961). 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 (of Income Tax Act, 1961) for

computation and intimation for the payment of fee U/s 234E (of Income Tax Act, 1961)

could not be made in purported exercise of power U/s 200A (of Income Tax Act, 1961) for

the period of the respective assessment years prior to 1st June,

2015. When the intimation of the demand notices U/s 200A (of Income Tax Act, 1961) is

held to be without authority of law so far as it relates to

computation and demand of fee U/s 234E (of Income Tax Act, 1961), the question of

further scrutiny for testing the constitutional validity of Section

234E would be rendered as an academic exercise. We find that

the Hon'ble Jurisdictional High Court in the case of Dundlod

Shikshan Geeta Star Hotels & Resorts Pvt. Ltd. Vs. DCIT

Sansthan Vs. Union of India (supra) has also considered the

decision of the Hon'ble Bombay High Court in the case of

Rashmikant Kundalia Vs. Union of India (2015) 229 Taxman

596 wherein the Hon'ble High Court has decided the nature of

demand. The Hon'ble High Court has held that Section 234E (of Income Tax Act, 1961) of

the Act is not punitive in nature but a fee which is a fixed charge

for the extra service which the department has to prove due to

the late filing of the TDS statements. Hence from both the

decisions relied upon by the ld. DR, the issue of power of

imposing late fee is not decided but the Hon'ble Karnataka High

Court in the case of Fatheraj Singhvi & ors. Vs. Union of India

&Ors. (supra) has decided the issue in favour of the assessee

and held that the late fee U/s 234E (of Income Tax Act, 1961) has raised vide

impugned demand notice U/s 200A (of Income Tax Act, 1961). We find force in

the contention of the ld. AR of the assessee. If there is conflicting

views taken by the two Hon'ble Courts, then the view, which

favours the assessee should be adopted. In this regard, the ld

AR of the assessee has relied on the decision of the Hon'ble

Supreme Court in the case of CIT Vs. Vatika Township P. Ltd.

(2014) 367 ITR 466 (SC). In view of the decision of the Hon'ble

Supreme Court in the case of CIT Vs. Vatika Township (supra),

the demand so raised are directed to be deleted.

Similarly identical findings have also been given in all the

appeals of other assessment years."

13. We further find that the Coordinate Agra Bench in the case

of State Bank of India, Gwalior (supra) again decided in favour

of the assessee by following the decision in case of Sudarshan

Goyal (supra) observing as follows:

8. Heard the rival contention and perused the material relevant.

We find that while deciding the issue against the appellant

assessee the ld. CIT(A) has placed reliance on 'Rajesh Kaurani

vs. Union of India', 83 Taxmann.com 137 (Guj.) wherein it was

held that Section 200A (of Income Tax Act, 1961) is a machinery provision

providing the mechanism for processing a TDS statement of

deduction of tax at source and for making adjustment. The Ld.

CIT(A) has further held that this decision was delivered after

considering numerous ITAT and High Court decisions and

therefore this decision in 'Rajesh Kaurani' (Supra), holds the

fields.

9. It is seen that prior 01.06.2015, there was no enabling

provision in the Act u/s 200A (of Income Tax Act, 1961) for raising demand in respect of

levy of fee u/s 234E (of Income Tax Act, 1961). The provision of Section 234E (of Income Tax Act, 1961) of

the Act is charging provision i.e. substantive provision which

could not be applied retrospectively, unless it is expressly

provided in the Act, to levy the late fee for any delay in filing the

TDS statement for the period prior to 01.06.2015. The counsel

for the assessee has rightly contended that in the absence of

enabling provisions u/s 200A (of Income Tax Act, 1961), such levy of late fee is

not valid relying on Group of SBI and Ors.

The decisions in the cases of 'CIT vs. Vatika Township Pvt. Ltd.

(2014) 367 ITR 466 (SC), 'Sudarshan Goyal vs DCIT (TDS)' ITA

No.442/Agr/2017 and Fatehraj Singhvi Vs. UOI (2016) 289

CTR 0602 (Karn) (HC). The decisions relied on by the Ld. DR are

distinguishable on facts, as the issue involved in those cases

pertains to interest u/s 201(1) (of Income Tax Act, 1961) and 201(1A) on the amount of

TDS whereas in the present cases the issue were pertains to

liability of late fee u/s 234E (of Income Tax Act, 1961) for delay in filing TDS

statement which was inserted from 01.06.2015.

10. On similar facts, 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 Group of SBI and

Ors.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 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 read as having prospective effect and not having

retroactive character or effect. Resultantly, the demand under

Section 200A (of Income Tax Act, 1961) for computation and intimation for the payment of

fee under Section 234E (of Income Tax Act, 1961) could not be made in purported exercise

of power under Section 200A (of Income Tax Act, 1961) 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 (of Income Tax Act, 1961), the aforesaid view will

not permit the Group of SBI and Ors. 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,

the grievance of the assessee is accepted as justified. The order

under appeal is reversed. The levy of the fee is cancelled."

11. In the above view, respectfully following 'Shri Fatehraj

Singhvi and Ors' (Supra), 'Sibia Healthcare Pvt. Ltd. Vs. DCIT

(Supra), 'Shri Kaur Chand Jain vs. DCIT', (Supra), and our own

finding in the case of 'Sudershan Goyal' (Supra), we accept the

grievance of the assessees as genuine. Accordingly, the orders

of the CIT(A) are reversed and the fee so levied under section

234E of the Act is cancelled.”

14. We, therefore, respectfully following the above referred

decision of the Coordinate Bench consistently holding that in the

intimation prepared u/s 200A (of Income Tax Act, 1961) up to 31st May 2015,

the late filing fee u/s 234E (of Income Tax Act, 1961) cannot be charged while

processing the TDS return/statement because enabling clause

(c) of sub-section (1) of section 200A (of Income Tax Act, 1961) have been inserted w.e.f.

01.06.2015 and before this amendment w.e.f 01.06.2015 there

was no enabling provision in the Act u/s 200A (of Income Tax Act, 1961) for

raising demand in respect of levy of fees u/s 234E (of Income Tax Act, 1961).

15. We are of the considered opinion that in all these 56

appeals the ld. CIT(A) erred in confirming the levy of late fee u/s

234E of the Act. We, accordingly, set aside the findings of Ld.

CIT(A) in all these appeals and allow the common issue in

favour of the assessee.

12. We, therefore, in the given facts and circumstances of the case

as well as following the decisions given by us in the case of State

Bank of India, Genda Chowk and others dated 13.11.2018 (supra)

and M/s. Madhya Pradesh Power Transmission Ltd. &

others in ITA Nos.740/Ind/2017 & others, order dated

20.12.2018(supra), Bhupesh Kumar J. Sanghvi & others in

ITANo.15/Ind/2018 & others, order dated 22.01.2019(supra) and

Indore School of Social Work & others in ITANo.117 of 2019 and

others, order dated 20.02.2020 are of the opinion that in the given

set of facts of the instant appeals wherein fee u/s 234E (of Income Tax Act, 1961)

was levied in the statements processed u/s 200A (of Income Tax Act, 1961) before

01.06.2015 i.e. before the amendment brought into effect from

01.06.2015 in section 200A (of Income Tax Act, 1961) thereby enabling the revenue

authorities to raise demand in respect of levy of fees u/s 234E (of Income Tax Act, 1961) of

the Act. Ld. CIT(A) erred in confirming the levy of late fees u/s 234E (of Income Tax Act, 1961)

of the Act by the assessing officer. Accordinglyfindings of ld. CIT(A)

in all these appeals are reversed and revenue is directed to delete

the levy of fees u/s 234E (of Income Tax Act, 1961) in all these 4 cases. Thus,

common issue raised in all these appeals are decided in favour of

the assessees.

13. In the result, all these appeals at the instance of

assessee(s)are allowed.

Order was pronounced in the open court on 19.03.2020.