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Income Tax Appellate Tribunal, DELHI BENCH: ‘C’ NEW DELHI
Before: SHRI N.K. SAINI & SHRI K.N. CHARY
way of impugned order. Hence the assessee is before us in this appeal.
At the outset, ld. counsel for the assessee, submitted that on identical fact, the issue under hand is covered by the decision of the Pune Bench of the Tribunal in the case of Gajanan Constructions vs DCIT, CPC (TDS), (2016) 73 taxman.com 380 (Pune Trib.). Ld. AR further submitted that the decision of the Pune Bench was considered by a coordinate Bench of this tribunal in M/s Samikaran Learning Private Limited Vs. TDS Officer, Delhi in to 4054/Del/2016. Per contra, ld. CIT-DR, contended that the Ld. First Appellate Authority has Rashmikant Kundalia vs UOI (2015) 54 taxman.com 200 (Bom.), Laxminirman Bangalore Pvt. Ltd. vs DCIT (2015) 60 taxman.com 144 (Karnataka) and M/s Dundlod Shishan Sansthan vs UOI (2015) 63 taxman.com 243 (Raj.), as such, such an order cannot be interfered with.
However, the factual matrix has not been in dispute.
A reading of section 200A of the Act shows that it deals with processing of statement of tax deducted at source, whereas, section 234E of the Act deals with fee for default in furnishing statements. On a careful reading of the material papers on record we found that the facts involved in this matter are similar to the facts involved in the case of Gajanan Constructions vs DCIT (supra) and M/s Samikaran Learning Private Limited (supra) wherein also the assessee has challenged the power of the officer to charge/collect fee as per the provision of section 234E, whether vested prior to substitution of clause (c) to section 200A of the Act by the Finance Act, 2015 w.e.f. 01/06/2015 and enabling provision in section 200A for raising demand in respect of levy of fee u/s 234E of the Act. In the latter decision a coordinate bench of this tribunal thoroughly considered the scope of section 200 A of the Act, in the light of the decision in Gajanan Constructions vs DCIT (supra), and found that prior to 01/06/2015, there was no enabling provision in section 200A for raising the demand in respect of levy of fee u/s 234E of the Act.
It was further observed that the coordinate Bench of Pune in the case of Gajanan Constructions (supra) has made an elaborate discussion on the issue and decided in favour of the assessee. It is also noted that while coming to a particular conclusion, the Pune Bench of the Tribunal duly considered the decisions relied upon by the Ld. CIT-DR such as from Hon'ble Bombay High Court in Rasmikant Kundalia (in para-6), Hon'ble Karnataka High Court in Laxmi Nirman, Bangalore (P.) Ltd. and also the decision of Hon'ble Rajasthan High Court in Dundlod Shikshan Sansthan vs UOI (supra)(in para-9 of the order), in its order dated 23/09/2016 along with the decision from Hon'ble Apex Court in the case of CIT vs Vatika Township Pvt. Ltd. (2014)
367 ITR 466(SC) which is to the effect of general principle concerning application of retrospectively of the amendment, wherein, it was held that a legislation is presumed not to be intended to have a retrospective operation. It is also noted that the Bench followed the decision in the case of Fatheraj Singhvi vs UOI(2016) 73 taxman.com 252 (Kerala)(Para-32) and Kash Realtors Pvt. Ltd. vs ITO (ITA NO.4199(Mum.) of 2015) dated 4
27/07/2016(para-36). Even if two views are possible/available, as per the decision from Hon'ble Apex Court in the case of Vegetable Products (88 ITR 192)(SC), the view, which favors the assessee has to be followed. The issue before the Hon'ble Bombay High Court in the case of Rashmikant Kundalia (supra) was with respect to constitution validity of the section introduced by Finance Act, 2015 w.e.f. 01/06/2015 but was not abreast of the applicability of section 234E of the Act by the AO while processing TDS statement. So far as, the Hon'ble Karnataka High Court is concerned, it was held that 'intimation raising demand prior to 01/06/2015, u/s 200A of the Act, levying fee u/s 234E, is not valid'. In the light of Gajanan Constructions vs DCIT (supra), it was hold that amendment in section 200A(1) of the Act is procedural in nature, therefore, the AO while processing the TDS statements, returns of the period prior to 01/06/2015, was not empowered to charge fee u/s 234E of the Act, hence, the intimation issued by the Assessing Officer u/s 200A of the Act, does not stand, as such, the demand raised by way of charging fee u/s 234E of the Act is not valid, resultantly, the same has to be deleted as the intimation issued by the Assessing Officer, for the period prior to 01/06/2015, is beyond the scope of adjustment provided u/s 200A of the Act. 5
Since the facts and the question of law involved in all these decisions are identically the same, while respectfully following the decisions in Gajanan Constructions vs DCIT (supra) and M/s Samikaran Learning Private Limited V s.l TDS Officer, Delhi (supra), we are of the considered opinion that the amendment in section 200 A (1) of the Act is procedural in nature and the Ld. AO while processing the TDS statements, returns of the period prior to 01/06/2015 was not empowered to charge late fee under section 234 E of the Act, as such the intimation issued by the assessing officer under section 200 A of the Act does not stand and the demand raised by way of charging fee under section 234 E of the Act is not valid and, accordingly, is liable to be deleted.
We accordingly allow the appeal of the assessee.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 20.12.2017