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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: MS. MADHUMITA ROY & SHRI B.M. BIYANI
These appeals by assessee are against the appeal-orders passed by Ld. CIT(A)-II, Indore, which in turn arises out of the different intimations u/s 200A of the Income Tax Act, 1961, passed by Ld. ACIT-TDS-CPC, Ghaziabad as per following details:
Divisional Forest Officer ITANo.42 to 46/Ind/2020 Page 2 of 8 order CPC F.Y. Form No. / dated of Intimation Quarter of TDS CIT(A)-2, Return date Indore 42/Ind/2020 29.09.2017 02.06.2014 2012-13 24Q-Quarter-4 43/Ind/2020 02.11.2017 01.06.2014 2013-14 24Q-Quarter-1 44/Ind/2020 29.09.2017 23.06.2014 2013-14 24Q-Quarter-2 45/Ind/2020 29.09.2017 23.06.2014 2013-14 24Q-Quarter-3 46/Ind/2020 29.09.2017 29.07.2014 2014-15 24Q-Quarter-1
In grounds of appeals, the assessee is aggrieved by the demand created by Ld. AO on account of levy of late filing fee u/s 234E of the Act at Rs. 11400/-, Rs. 11400/-, Rs. 16000/-, Rs. 16,000/- & Rs. 2000/- respectively.
3. None appeared on behalf of the assessee. However, Ld. Sr. DR relied upon the order of the Ld. CIT(A).
We have heard both the parties and perused the materials available on record.
The issue relates to addition under Section 234E of the Act. We find that the issue is covered by the order passed by the Co- ordinate Bench in in case of M/s. Keshav Industries Pvt. Ltd. & ITA Nos. 500 to 508/Ind/2019 Mr. Rajendra Prasad Tiwari order dated 14.07.2020. The copy whereof is on record. On the other hand, Ld.DR did not raise any serious objection.
Divisional Forest Officer ITANo.42 to 46/Ind/2020 Page 3 of 8
We have perused the Co-ordinate Bench order alongwith appeal preferred by the assessee. The Co-ordinate Bench has been pleased to observe as follows:
“10. We also observe that the Co-ordinate Bench Agra in the case of Sudershan Goyal Vs DCIT (TDS) order dated 09.04.2018 considering the similar issue deciding in favour of the assessee observed as follows:- “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 fora period prior to 01.06.2015, no late fee could be levied in the intimation issued u/s 200A of the Act.
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.
Divisional Forest Officer ITANo.42 to 46/Ind/2020 Page 4 of 8 442/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), 'ShriFatehrajSinghvi 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.
Divisional Forest Officer ITANo.42 to 46/Ind/2020 Page 5 of 8 442/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 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 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 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
Divisional Forest Officer ITANo.42 to 46/Ind/2020 Page 6 of 8 of the assessee is accepted as justified. The order under appeal is reversed. The levy of the fee is cancelled.”
We, therefore respectfully following above decisions are of the opinion that in the given set of facts of the instant appeals wherein fee u/s 234E of the Act was levied in the statements processed u/s 200A of the Act before 01.06.2015 i.e. before the amendment brought into effect from 01.06.2015 in section 200A of the Act thereby enabling the revenue authorities to raise demand in respect of levy of fees u/s 234E of the Act, Ld. CIT(A) erred in confirming the levy of late fees u/s 234E of the Act by the assessing officer. Accordingly findings of Ld. CIT(A) in all these 10 appeals are reversed as we have recently taken a considered view against the revenue on earlier orders of Ld. CIT(A) wherein the identical orders by respective CIT(A) were passed and accordingly the revenue is directed to delete the levy of fees u/s 234E of the Act in all these 10 cases. Thus, common issue raised in these bunch of appeals is decided in favour of the assessee(s).
In the result, all 10 appeals at the instance of assessee(s) are allowed.”
On consideration of above, it is clear that the issue is covered and thus the relief as prayed for by the assessee is hereby allowed.
Divisional Forest Officer ITANo.42 to 46/Ind/2020 Page 7 of 8 In that view of the matter, the impugned levy of fee under Section 234E of the Act in the present appeals hereby quashed. 8. In the result, assessee’s appeals in ITANo.42 to 46/Ind/2020 are allowed.
Order pronounced in open court on 29/09/2022.