ROSE ROCK REAL ESTATE INDIA PVT.,MUMBAI vs. ITO (TDS) 2(1)(3), MUMBAI

THE INCOME TAX APPELLATE TRIBUNAL “D” Bench, Mumbai Shri Shamim Yahya (AM) & Shri Pavankumar Gadale (JM)

I.T.A. No. 4824/Mum/2019 (Assessment Year 2013-14) I.T.A. No. 4823/Mum/2019 (Assessment Year 2015-16) Vs. 1. ACIT-TDS- Rose Rock Real Estate India Pvt. Ltd. CPC,Ghaziabad 1, Gordhan Building, 2nd Floor, Behind Girguam 2. ITO(TDS)-2(1)(3) Court, Off Dr Parekh Street 6th Floor, Room No. Opp. HN (Reliance) Hospital 610, K.G. Mittal Prathna Samaj Ayurvedic Hospital Mumbai-400 004. Charni Road West Mumbai-400 002. PAN : AAGCR7537L (Appellant) (Respondent)

Assessee by Shri Rajesh Mehta Department by Shri Manoj Kumar Singh Date of Hearing 25.08.2021 Date of Pronouncement 02.09.2021

O R D E R Per Shamim Yahya (AM) :- These are appeals by the assessee against respective orders of learned CIT(A) for A.Y. 2013-14 & 2015-16 respectively.

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in TDS Statement filed in respect of period prior to 01.06.2015 and the same is liable to be deleted.

Q3(26Q) 15th Jan 2014 10th Dec 2014 329 days Rs. 37080/-

Q4(26Q) 15th May 2014 10th Dec 2014 209 days Rs. 41800/-

Total in Rs. Rs.78,880/-

The deductor had filed the rectification application U/s 154 of the Act, against the order passed U/s 200A of the Act. This application was rejected by the ITO-TDS, Mumbai on 31st July 2018.

That the deductor had filed its TDS Quarterly statement for F.Y.2013-14 as under :-

TDS statement Due date of filing Actual date of Delay in Amount of for the Quarter filing TDS filing TDS late fees u/s. statement statement 234E

Q3(26Q) 15th Jan 2014 10th Dec 2014 329 days Rs. 37080/-

Q4(26Q) 15th May 2014 10th Dec 2014 209 days Rs. 41800/-

Total in Rs. Rs.78,880/-

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The CPC TDS raised the demand of Rs. 78.880/- for the two quarters u/s 234E for which the assessee is in appeal with following grounds. Thereafter learned CIT(A) noted the grounds as under :-

“2. Processing of TDS statement pertaining to TDS statement fallen due before 1-6-2015, levying Late fees U/S.234E is against the law:-

Section 200A has been amended w.e.f. 01/06/2015 to pass order U/S.200A for the purpose of levying late fees U/S.234E for TDS statements which were due to be filed on or after 1-6-2015 &for TDS deducted on or after 1-6-2015 & thus it is clear that orders levying late fee U/s 234E passed for TDS statement which were due to be filed before 1-6-2015&for TDS deducted before 01/06/2015 are wrong, unlawful and beyond jurisdiction hence liable

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to be quashed and late fee should be deleted in view of various High Court and tribunal judgments of coordinate benches also.

High Court of Karnataka in the case of Fatheraj Singhvi & Ors. Vs. Union Of India &Ors.(2016) 96 CCH 0337 held that "As the amendment to s. 200A has come into effect on 1.6.2015 and has prospective effect, no computation of fee for the demand or the intimation for the fee u/s 234E can be made for TDS deducted prior to 1.6.2015. Hence, the demand notices u/s 200A for payment of fee u/s 234E is without authority of law. This Judgement was also followed by Karnataka High Court in the case of Sree Ayyappa Educational Charitable Trust Vs. Deputy Commissioner Of Income Tax & Anr.(2017) [Writ Petition No.618/2015 c/w Writ Petition Nos.5831/2015 & 5990-6001/2015 (T-IT)]. In the said case Hon'ble Karnataka High Court has held as under :-

"In view of the aforesaid observations and discussion, the impugned notices under Section 200A of the Act for computation and intimation for payment of fee under Section 234E as they relate to for the period of the tax deducted prior to 1.6.2015 are set aside."

Karnataka High Court in case of Koraga Poojari Ravindravs Union of India on 12 December, 2017, Writ Petition Nos.9049/2015 & 26715/2015 (T-IT) followed the case of Fatheraj Singhvi & Ors. Vs. Union of India &Ors, & this is not disputed by the learned counsel for the Revenue & was decided in favour of assessee.

2.1 Coordinate ITAT benches and various benches and Karnataka High Court has held that no late fee can be levied if the due date of filing TDS statement was before 1-6-2015 i.e. date of processing u/s 200A of the TDS statement is not to be considered but due date of filing is to be considered :-

The same view is supported by the recent judgment of Hon'ble ITAT Pune Bench being coordinate bench in the case of Gangamai College V. ACIT TDS CPC vide ITA No. 1167/PUN/2018 in order dated 06-11-2018 held that, "75. In other words, the Hon'ble High Court of Karnataka explained the position of charging of late filing fees under section 234E of the Act and the mechanism provided for computation of fees and failure for payment of fees under section 200A of the Act which was brought on Statute w.e.f. 01.06.2015. The said amendment was held to be prospective in nature and hence, notices issued under section 200A of the Act for computation and intimation for payment of late filing fees under section 234E of the Act relating to the period of tax deduction prior to 01.06.2015 were not maintainable and were set aside by the Hon'ble High Court. In view of said proposition being laid down by the Hon'ble High Court of Karnataka (supra), there is no merit in observations of CIT(A) that in the present case, where the returns of TDS were filed for each of the quarters after 1st day of June, 2015 and even the order charging late filing fees was passed after June, 2015, then the same are maintainable, since the amendment had come into effect. The CIT(A) has overlooked the fact that notices under section 200A of the Act were issued for computing and charging late filing fees under section 234E of the Act for the period of tax deducted prior to 1st day of June, 2015. The

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same cannot be charged by issue of notices after 1st day of June, 2015 even where the returns were filed belatedly by the deductor after 1st June, 2015, where it clearly related to the period prior to 01.06.2015.

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order passed under section 154 of the Act and not from the date of issue of intimation. Thus, there is no merit in the order of CIT(A) in dismissing the appeals of assessee on this issue.

Further, before parting, we may also refer to the order of the CIT(A) in these two appeals. The CIT(A) had dismissed the appeals of the assessee being delayed for a period of two and half years. The CIT(A) had taken the date of intimation under section 200A(3) dated 07- 08- 2014 and computed the delay in filing the appeal late before him. However, the assessee had filed the appeal before the CIT(A) against the order passed under section 154 of the Act. The said application for rectification under section 154 was filed on 08-06-2017/09-03-2017 in the respective years. The said application was decided by the Assessing Officer on 09-06-2017. The assessee filed an appeal against the dismissal of the rectification application filed under section 154 of the Act. The said fact is clear from the perusal of Form No.35 with special reference to Column 2(a) and 2(b). In the entirety of the above said facts and circumstances, we find no merit in the order of CIT(A) in the case of Medical Superintendent Rural Hospital, Surgana in dismissing the appeal in limine being filed beyond the period of limitation. We have already decided the issue on merits in favour of assessee."

We have already decided the issue on merits in favour of assessee. Accordingly, the grounds of appeal raised by assessee in all appeals are allowed."

Since the issue arising in the present bunch of appeals is similar to the issue before the Tribunal in the cases of Medical Superintendent Rural Hospital and Junagade Healthcare Pvt. Ltd. (supra) and we have decided both the issues in favour of assessee, we hold that the assessee is not liable for levy of late filing charges under section 234E of the Act for the period prior to June, 2015 in the absence of amendment to section 200A of the Act, which was brought on Statute from 01.06.2015. Consequently, we also hold that the appeals filed by assessee were in time since the period has to be reckoned from the date of order under section 154 of the Act and not from the date of issue of intimation under section 200A of the Act. Accordingly, we delete late filing fees levied under section 234E of the Act for the period prior to June, 2015 though the returns of income were filed after June, 2015 and even order levying late filing fees under section 234E of the Act was passed after June, 2015. The grounds of appeal raised by assessee are thus, allowed".

The levy of late fee u/s 234E in the intimation u/s 200A is contrary to the law laid down by Jurisdictional Tribunal which is binding on the lower authority as per the decision of Hon'ble Bombay High Court in the case of Bank of Baroda v. H.C. Shrivastava [(2002) 256 ITR 385 (Bom)] and thus, the

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CIT APPEALS had in turn to follow the law laid down by Hon'ble Jurisdictional High Court while levying the late fee u/s 234E in the intimation u/s 200A and therefore, not following the decision of Hon'ble Jurisdictional H.C. was a mistake apparent from record which should have been rectified by way of an order u/s 154 of the Act. Hon'ble Bombay High Court in the para 16 of the said order had stated, "16. At this juncture, we cannot resist from observing that the judgment delivered by the Income Tax Tribunal was very much binding on the Assessing Officer. The Assessing Officer was bound to follow the judgments in its true letter and spirit. It was necessary for the judicial unity and discipline that all the authorities below the Tribunal must accept as binding the judgment of the Tribunal. The Assessing Officer being inferior officer vis-a-vis Tribunal, was bound by the judgment of the Tribunal and the Assessing Officer should not have tried to distinguish the same on untenable grounds. In this behalf, it will not be out of place to mention that in the hierarchical system of Courts' which exists in our country, "it is necessary for each lower tier" including the High Court, "to accept loyally the decisions of the higher tiers". "It is inevitable in hierachical system of Courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. But the judicial system only works if someone is allowed to have the last word, and that last word once spoken is loyally accepted." The better wisdom of the Court below must yield to the higher wisdom of the Court above as held by the Supreme Court in the matter of C. C. E. v. Dunlop India Ltd.",

In case, any decision in favour of revenue be considered, it may be appreciated that where more than one judicial interpretations are possible, the one, favourable to the assessee shall apply. Thus, the case law which is more beneficial to the assessee shall apply.

Reliance in this regard is placed on the decision of Hon'ble Supreme Court in CIT v. Vegetable Products Ltd [1973] 88 ITR 192, if the Court finds that the language of taxing provision is ambiguous or capable of more meaning than one, then the Court has to adopt the interpretation which favours the assessee.

It is an established law that when there are two conflicting decision of different courts then one in favor of the assessee should be applied. Therefore in the case under consideration since the Gujarat High Court is not a Jurisdictional High Court therefore the decision of Gujarat High Court is not binding and two favorable decisions of Karnataka High Court which are in favor of the. assessee may kindly be followed.

• In the case of CIT V. Thana Electricity Supply Ltd. (1994) 206 ITR 727 (Bombay) Hon'ble High Court of Bombay held that "decision of High Court are binding on subordinate Courts and does not extend beyond its territorial jurisdiction" and also held that "where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decision." The said view of the Hon'ble Bombay High Court also talks about co-ordinate bench and does not talk about non-jurisdictional High Court.

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• Therefore, the views of Hon'ble Supreme Court in the case of Vegetable Products (88 ITR 192) (SC) that, "the view, which favours the assessee has to be followed."

Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Smt. TarulataShyam v. CIT [1971] 108 ITR 345 (SC) wherein it was held that there is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Thus it is clear that order u/s.200A of the Act has been wrongly passed to levy late fees U/S.234E nor there was any authority as TDS CPC was not empowered to do so.

The decision of Hon'ble Supreme Court of India in the case of CIT v. Naga Hills Tea Co. Ltd. [1973] 89 ITR 236 (SC) wherein it was held as under: "......If a provision of a taxing state can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee, has got to be accepted. This is a well accepted view of law."

In view of the above judicial decisions, it is of no doubt that no late fee u/s. 234E of the Act can be levied prior to 1.6.2015 or after 1-6-2015, Hence, Intimation issued u/s. 200A of the Act is liable to be quashed and late fee u/s. 234E is liable to be deleted.

• Special Bench of the Delhi Tribunal in the case of ITO New Delhi vs Ekta Promoters Private Ltd (2008) 113 ITD 0719 held that -

• Hon'ble Supreme Court of India in the case of Commissioner Of Income Tax Vs. Hindustan Electro Graphites Ltd. (2000) 160 CTR 0008 held that-

• In the case of ITAT Pune Bench 'A' being the coordinate bench, Medical Superintendent Rural Hospital, DOBI BK Vs Deputy Commissioner of Income Tax, CPC (TDS), Ghaziabad 173 ITD 575

• ITAT MUMBAI in the case of BCCI v/s ACIT (TDS)-2, Mumbai, I.T.A. No.1999/Mum/2017, in the order dated 5-10-2018

• Hon'ble ITAT, Mumbai Bench, in the case of Hardik Shantilal Sheth Vs ACIT (TDS)-CPC, vide ITA No. 6506/MUM/2017

• Hon'ble ITAT Cuttack Bench in the case of Spectra Vision Vs DCIT, CPC, TDS, Ghaziabad vide. ITA Nos.329 to 332/CTK /2016, assessment year 2013-14 & 2014-15

• Hon'ble ITAT, Amritsar Bench, in the case of Tata Rice Mills Vs Asst. CIT, CPC, TDS, Ghaziabad vide ITA no. 395(Asr) 2016, assessment year 2014- 15

• Hon'ble ITAT, Pune Bench, being the Coordinate Bench in the case of Vidya Vardhani Education Research Foundation Vs Deputy

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Commissioner of Income Tax, CPC, TDS, Ghaziabad vide ITA No. 1887/PUN/2016.”

Ground No. 1 and 7 are general in nature.

In response to the Ground No. 2 and Ground No. 6, the appellant has submitted a host of case laws in which the ratio is that the intimation u/s 200A can be validly processed only after 01/06/2015. However, at the same the appellant is also harping on the fact if the period of default is also pertaining prior to 01/06/2015 even then it cannot be processed. The appellant's contention is factually and legally misplaced.

Historically, the legal provisions regarding this issue is that in the Finance (No.2) Act, 2009 section 200A was inserted in the Income-tax Act which provided for processing of TDS statements for determining the amount payable or refundable to the deductor. However, as section 234E was inserted after the insertion of section 200A in the Income-tax Act, the existing provisions of section 200A of the Income-tax Act did not provide for determination of fee payable under section 234E of the Income-tax Act at the time of processing of TDS statements. Accordingly, the provisions of section 200A of the Income-tax Act has been amended (w.e.f. 01/06/2015) so as to enable computation of fee payable under section 234E of the Income-tax Act at the time of processing of TDS statement under section 200A of the Income-tax Act. Thus, even if the period is prior to 01/06/2015, the charging sec 234E was very much a part of the statute and calls for a levy of fee for default in furnishing statements. After 01/06/2015, the processing of statements filed prior to 01/06/2015 is also valid after the amendment in the law.

In the instant case, the date of rectification order is 01/01/2017 i.e. after 01/06/2015 which is valid as per law. Hence, there is no ambiguity in interpreting the facts as well as the legal position and considering the same, the order passed by the CPC TDS is upheld.

In Ground No. 4, the appellant has taken the plea that the TDS statement has been processed u/s 200A by TDS CPC, whereas as per section 200A(2), CBDT has not authorised the CPC TDS to levy late fee. Therefore the levy of late fee is beyond jurisdiction. The contention of the appellant on this account is also misplaced as the CBDT has empowered the CPC TDS by the

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Centralised Processing of Statement of Tax Deducted at Source scheme 2013 to process returns u/s 200A(2) and to determine the tax payable, or, the refund due to the deductor as required under the said sub section.

In Ground No. 5, the assessee has submitted that as per proviso to Sec 200A, no intimation under this sub section shall be sent after the expiry of one year from the end of the financial year in which the statement is filed. As intimation sent after 31/03/2016 for FY 2013-14, 26Q-Q4 and therefore the intimation issued is itself wrong.

Further, to verify the claim of the assessee, a request was made to the CPC TDS on 06/06/2019 to provide the details of this case and the CPC TDS vide his mail dated 06/07/2019 has sent the following details :-

TAN MUMR31556A Date of filing of regular return 10/12/2014

FY 2013-14 Date of Order of regular 13/12/2014 return Form Type 26Q Communication reference No. TDS/1314/26Q/D/ 10/0013204585 Qtr Q4 Registered E-mail ID Beena.sampat@silagr oup.co.in To Email ID Beena.sampatt@qil Date of Intimation sent by 08/01/2015 (Regular Return) agroup.co.in post on regular statement

Date of Intimation 06/01/2015 Reprocessing (Yes/No) If Yes (LP DFLT STRT sent by Email yes reason of reprocessing DATE INCR BY 1 (Regular Return) DAY) Communication TDS/1314/26Q/d/ Order Pass Date 01/01/2017 Reference No. 100023744550 (Reprocessing) Email beena.sampat@sila Email Date(Reprocessing) 01/01/2017 (Reprocessing) group.co.in

On perusal of the above mentioned details furnished by the CPC TDS, it is crystal clear that the assessee has first filed the regular return on 10/12/2014 which was processed on 13/12/2014. Thus the appellant's contention on this account is not sound as the statement was processed within the year.

The appellant's another ground was that the order u/s 154 was not as per law. The appellant in due course again filed the correction statement which was processed on 01/01/2017. In the instant case, the date of rectification order was 01/01/2017.

“The appellant's another plea that the rejection of order u/s 154 of the assessee by the AO is bad in law as law in this respect was very clear. However, it is clearly apparent that where on an issue the two High Courts are giving divergent opinions, the issue is definitely debatable and cannot be considered as an apparent mistake from the record. Thus, the rejection by the AO is as per law and hence this plea of deletion of demand u/s 234E by

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the AO cannot be entertained at the time of passing an order u/s 154. Hence, on this ground, the AO's order is upheld.”

After going through all the grounds, there is no ambiguity in interpreting the facts as well as the legal position and considering the same, the order passed by the CPC TDS is upheld. In sum, the appeal is DISMISSED.”

“In respect of the captioned F.Y. 2013-14 (relevant to A.Y. 2014-15) and F.Y. 2014-15 (relevant to A.Y. 2015-16), there was a delay in filing TDS Statements by the appellant. The TDS Returns filed by the Appellant were processed by the Centralized Processing Cell of the Income Tax Department (CPC-TDS, Ghaziabad) and Intimations u/s. 200A of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') were issued whereby late fee u/s. 234E of the Act was levied.

Aggrieved from the said levy of late fee u/s. 234E of the Act, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals)-60, Mumbai. The Ld. CIT(Appeals)-60, Mumbai dismissed the appeal vide his Order dated 07.06.2019. Aggrieved from said order of CIT(A)-60, Mumbai, the assessee has preferred this appeal before the Hon'ble Tribunal.

The details of TDS statements filed by the appellant is as under:

Financial Form Type Due Date of filing TDS Actual Date of filing Late fees Year and Quarter Statement TDS Return u/s. 234E (in Rs.) 2013-14 26Q - Q3 15.01.14 10.12.14 37,080/- 2013-14 26Q - Q4 15.05.14 10.12.14 41,800/- 2014-15 26Q-Q1 15.07.14 14.05.16 95,999/- 2014-15 26Q - Q2 15.10.14 14.05.16 33,000/-

The appellant has to submit as under:

Levy of Late fee u/s. 234E by processing TDS statements for the period prior to 01.06.2015 is against the provisions of the Act:-

The Ld. CIT(Appeals)-60, Mumbai has erred in not appreciating that sec.200A(l) of the Act does not permit processing of TDS statement for default in payment of late fee u/s. 234E of the Act for TDS statements falling due before 01.06.2015 and doing so is beyond the scope of processing of TDS returns by TDS-CPC, Ghaziabad. Accordingly, late fee u/s 234E of the Act for TDS

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Statements cannot be recovered by way of processing of TDS returns u/s. 200A. Hence the levy of late fee u/s. 234E is liable to be deleted.

Thus, in light of the aforesaid amendment, no late fee u/s. 234E of the Act could be levied for the TDS Statements pertaining to tax deducted for the period prior to 01.06.2015.

Reliance in this regard is also placed on the following judicial decisions:

a. High Court of Karnataka in the case of Fatheraj Singhvi & Ors. vs. Union Of India &Ors. [2016] 73 taxmann.com 252 (Karnataka) held as under:

"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 23 4E 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.

c. Hon'ble Mumbai ITAT - Dilip Sharayu Bapat vs. ACIT, CPC(TDS) [ITA No. 4849 to 4851/Mum/2018] vide its Order dated 29.11.2019 has held that late fee u/s. 234E of the Act cannot be levied for the tax deducted at source, prior to 01.06.2015

d. Hon'ble Mumbai ITAT - Sila Projects Management Services Pvt. Ltd. vs. ACIT, CPC(TDS) [ITA Nos. 1547 - 1556/Mum/2019] vide its Order dated 19.12.2019 has held that late fee u/s. 234E of the Act cannot be levied for the TDS Statements for tax deducted at source prior to 01.06.2015.

e. Hon'ble Amritsar ITAT - Tata Rice Mills - |ITA No. 295/Asr/2016] has held that computation of fee u/s. 234E could not be made for tax deducted prior to 01.06.2015. The Hon'ble Tribunal has held as under:

"While coming to the instant case, second quarterly statement relevant to the Financial Year 20l4-15 was filed on 19th June, 2015 by the assessee

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which was processed on 23rd June, 2015 and TDS, CPC levied a late fee of Rs.49,400/- while issuing order u/s 200A of the Act which was challenged by the assessee by filing first appeal before the Ld. CIT(A) who dismissed the appeal of the assessee. On feeling aggrieved against the order passed by the Ld. CIT(A), the assessee preferred the instant appeal and in support of its case Asst. Year: 2014-15 submitted that the Ld. CIT(A) was not justified in upholding the late filing fee of Rs.49,400/- levied by the DCIT, (TDS), Central Processing Cell u/s 234 E. Further failed to appreciate that there is no power with the aforesaid authority to levy such late filing fee in intimation u/s 200A of the I.T. Act, 1961. The Ld. Counsel also relied upon the judgment passed by the Hon'ble Karnataka High Court in the case ofFatheraj Singhvi & Ors. vs. Union of India &Ors. (2016) 289 CTR (Kar) 602 and submitted that in the said case the Hon 'ble High Court has held that amendment made u/s 200A which came into effect from 1st June, 2015 is held to be having prospective effect and no computation of fee for the demand u/s 234E could be made for the TDS deducted for the respective assessment prior to 1st June, 2015. Therefore, the assessee is also entitled to get the same treatment.

In the result, the appeal filed by the assessee is allowed Order pronounced in the open Court on 25.10. 2017."

f. Hon'ble Chandigarh ITAT in the case of Sonalac Paint & Coating Ltd. vs. DCIT (2018) 176 DTK 83 (Chd.) after relying on the judgment of Hon'ble Amritsar IT AT in the case of Tata Rice Mills vs. ACIT(TDS)-CPC [ITA No. 395/Asr/2016] has held that late fee u/s. 234E of the Act could not be levied for the returns/quarters prior to 01.06.2015.

g. Hon'ble Karnataka High Court in the case of Sree Ayyappa Educational Charitable Trust vs. DCIT &Anr. [2017] [Writ Petition No. 618/2015 c/w. W.P. No. W.P. 5831 & 5990-6001/2015] has held as under:

"27. In view of the aforesaid observations and discussion, the impugned notices under Section 200A of the Act for computation and intimation for payment of fee under Section 234E as they relate to for the period of the tax deducted prior to 1.6.2015 are set aside. "

h. ITAT Chandigarh in the case of M/s. Terra Infra Development Limited Hyderabad [ITA No 1876 & 1875/Hyd./2017] Assessment Years: 2013-14 & 2014-15 stated that the Coordinate Bench in the case of M/s. Sonalac Paintings & Coatings Ltd held that:

"we hold that the interest u/s 234E cannot be levied in respect of TDS returns filed prior to 1.6.2015. TDS Fees under Se.234E, Sonalac Paints & Coating Ltd V/s Dy CIT ITA No.ll58/CHD/2017 reported in (2018) 167 DTK (Chd B) 83 order dated 1-5-2018, Levy of fees by way of intimation under Se 200A. Fees levied under Sec. 234E prior to 1st June 2015 in the intimations made under Se 200A was without authority of law and the same is therefore directed to be deleted. In view of the above, all the appeals of the assessee stands allowed. "

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i. Karnataka High Court in case of Koraga Poojari Ravindra vs Union of India on 12 December, 2017, W.P. Nos.9049/2015 & 26715/2015 (T-IT) followed the case of Fathera Singhvi & Ors. Vs. Union of India &Ors, & this is not disputed by the learned counsel for the Revenue & was decided in favour of assessee. In view of the above submission of the appellant and the above stated judicial decisions, late fee u/s. 234E of the Act cannot be levied for TDS statements pertaining to the period before 1.6.2015 in respect of the tax deducted prior to 1.6.2015. Hence, late fee u/s. 234E of the Act is liable to be deleted. 2. Sec. 204 of the Act has not made any one responsible to deposit late fee u/s.234E:-

Without prejudice to the above submission, the Ld. CIT (A)-60, Mumbai and the Ld. AO (CPC-TDS) erred in not considering the provisions of section 204 of the Act, wherein "person responsible for paying" is for the purpose of sec. 190 to sec. 203AA and sec. 285 of the Act, this phrase does not cover Sec. 234E Consequently, no one is responsible for default u/s 234E of the Act & none can be held responsible to deposit it. Since no one is held responsible to deposit late fees u/s 234E hence, order passed u/s 200A levying late fees u/s 234E is liable to be quashed. 3. Relief sought; In view of the above submission, the levy of late fee u/s. 234E of the Act is not in accordance with the law and is liable to be deleted along with interest charged thereupon.”

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the assessee has to be adopted. Hence, if as per learned CIT(A) there are divergent views of Hon'ble High Courts, in absence of a Jurisdictional High Court decision, the learned CIT(A) should have followed the ratio from this Hon'ble Supreme Court decision and followed the high court decision in favour of the assessee. In our opinion learned CIT(A) has engaged in judicial indiscipline and his approach and order cannot be countenanced. Further we may refer to the penultimate para of learned CIT(A) order :- “The appellant's another plea that the rejection of order u/s 154 of the assessee by the AO is bad in law as law in this respect was very clear. However, it is clearly apparent that where on an issue the two High Courts are giving divergent opinions, the issue is definitely debatable and cannot be considered as an apparent mistake from the record. Thus, the rejection by the AO is as per law and hence this plea of deletion of demand u/s 234E by the AO cannot be entertained at the time of passing an order u/s 154. Hence, on this ground, the AO's order is upheld.”

Pronounced in the open court on 2.9.2021.

Sd/- Sd/- (PAVANKUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER

Mumbai; Dated : 2/9/2021 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai

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