GAUTAM BODHAK ,HOWRAH vs. ACIT, CPC (TDS), GHAZIABAD, GHAZIABAD

आयकर अपील�य अधीकरण, �यायपीठ – “D” कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH “D” KOLKATA Before Shri S.S.Godara, Judicial Member and Dr. A.L. Saini, Accountant Member ITA No.1818-1821/Kol/2018 Assessment Year :2014-14 (Q-1to Q4) Gautam Bodhak V/s. ACIT, Centralized Ichapur Road, Dasnagar, Processing Cell-TDs, Howrah-711104 Ghaziabad, U.P. 201010 [PAN No. ADYPB 6059 K] Vaishali .. अपीलाथ� /Appellant ��यथ�/Respondent None आवेदक क� ओर से/By Assessee Shri Shankar Halder, JCIT, SR-DR राज�व क� ओर से/By Revenue 18-04-2019 सुनवाई क� तार�ख/Date of Hearing 30-04-2019 घोषणा क� तार�ख/Date of Pronouncement आदेश /O R D E R PER S.S.Godara, Judicial Member:- These assessee’s four appeal(s) for assessment year 2014-15 (Q 1 to Q 4) arise against the Commissioner of Income Tax (Appeals)-14 Kolkata’s identical order(s) all dated 20.06.2018 passed in case No. 10580, 10575,10578,10582/CIT(A)-14/Cir-46/2016-17, affirming the Assessing Officer’s action involving late fee of ₹15,180, ₹44,730/-, ₹38,200/- & 14,200/-; respectively involving proceedings u/s 234E of the Income Tax Act, 1961; in short ‘the Act’. 2. Learned Departmental Representative vehemently supports both the lower authorities action imposing impugned late fee pertaining to all the four quarters in issue. We find that in this backdrop of facts that the Revenue’s action under challenge imposing the impugned late fee does not deserve to be concurrent with. This tribunal’s co-ordinate bench’s decision in “Sudarshan Goyal vs. DCIT (TDS) in ITA No.442/Agra/2017 decided on 09.04.2018 takes

ITA No.1818-1821/Kol/2018 A.Y. 2014-15 Q1-Q4 Gautam Bodhak Vs. ACIT, CPC TDS Page 2 into consideration contrary views of various hon'ble high courts to hold that that the statutory provision in issue does not prescribe for such a late fee computation for the time period prior to 01.06.2015 as under:- “2. 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 dated 10.11.2013 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 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. UOl', 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 Id. 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 Id. 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 Id. CIT(A) himself, decides the issue in favour of the assessee. The only objection of the Id. CIT(A) is that this decision and others to the same effect have been taken into consideration by the Hon'ble Gujarat High while passing 'Rajesh Kaurani' (supra). However, while observing so, the Id. 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 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 lee 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

ITA No.1818-1821/Kol/2018 A.Y. 2014-15 Q1-Q4 Gautam Bodhak Vs. ACIT, CPC TDS Page 3 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." 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.” 3. We adopt the above discussion mutatis mutandis to reverse both the lower authorities’ identical action imposing the impugned sec. 234E late fee as not sustainable. The same is directed to be deleted. 4. This four assessee’s appeals are allowed. Order pronounced in the open court 30/04/2019 Sd/- Sd/- (लेखा सद�य) (�या(यक सद�य) (Dr.A.L. Saini) (S.S.Godara) (Accountant Member) (Judicial Member) Kolkata, *Dkp, Sr.P.S )दनांकः- 30/04/2019 कोलकाता । आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. आवेदक/Assessee-Gautam Bodhak Ichapur Road, Dasnagar, Howrah-711104 2. राज�व/Revenue-ACIT, Centralized Processing Cell, TDS, Ghaziabad, U.P 201010 3. संबं4धत आयकर आयु5त / Concerned CIT Kolkata 4. आयकर आयु5त- अपील / CIT (A) Kolkata 5. 8वभागीय �(त(न4ध, आयकर अपील�य अ4धकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड= फाइल / Guard file. By order/आदेश से, /True Copy/ सहायक पंजीकार आयकर अपील�य अ4धकरण, कोलकाता ।