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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR
BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER
I.T.A. No. 45/Asr/2019 Assessment Year: 2015-16
M/s K.C. Social Welfare Vs. Income Tax Officer (TDS), Trust, K.C. Tower, Jalandhar Chandigarh Rd., Navashahar, [PAN: AAATK6129L] (Appellant) (Respondent)
Appellant by :None. Respondent by: Sh. S.M. Surendranath (DR)
Date of Hearing: 03.03.2022 Date of Pronouncement: 03.03.2022
ORDER Per Dr. M. L. Meena, AM:
This appeal of the assessee is directed against the order dated 11/12/2018 passed by the CIT(Appeal-2), Jalandharwherein levy of fee u/s 234E of the Income Tax Act, 1961(hereinafter short the ‘Act’ is confirmed. 2. As per record the details of the TDS deduction and statement filed by the assessees is reproduced hereunder:
Sr. No. Name of the F.Y. / Date of statement
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assessee Quarter 1.M/s K.C. welfare 2014-15/ 19/02/2015 Social Trust, Navashahar Q-4
We understand that earlier, there was no enabling provision intheAct u/s 200A for raising demand in respect of levy of fee u/s 234E. As such, in respect of TDS statement/Returns filed for a period prior to 31.03.2015, no late fee could be levied in the intimation issued u/s 200A of the Act. 4. On similar facts, the same issue has been adjudicated by the Co- ordinated bench ITAT Agra, in the case of ‘Sudershan Goyal vs. DCIT (TDS)’ in ITA No. 442/Agra/2017 vide order dtd. 09.04.2018 and recently the Amritsar Bench in case of Harbhagwan Memorial Sen. Sec. School and others in ITA No. 604/ASR/2018, Assessment Year 2015-16 vide order dated 07/07/2019.The relevant part of the order is reproduced as funder: “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 FatehrajSinghvi and Others vs.UOI’, 73 Taxmann.com 252 (Ker), as also admitted
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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 not 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 ‘FatehrajSinghvi 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 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
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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 FatehrajSinghvi 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.” 7. Thus, in the course of pressing for TDS statement and issuance of statement under section 200 A, an adjustment could be made in respect of the fee, if any shall be computed in accordance with the provisions of section 234E of the act. Since the amendment was prospective, it was not applicable to the quarter ending on 31.03.2015. 8. Accordingly, the orders of the CIT(A) are reversed and the fee so levied under section 234E of the Act is cancelled. 9. In the result, the appeal is allowed.
Order pronounced in the open court on 03.03.2022
Sd/- Sd/- (AnikeshBanerjee) (Dr. M. L. Meena) Judicial Member Accountant Member Doc* Date: 03.03.2022
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Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T