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Medical Superintende... v. Deputy Commissioner ...

Income Tax Appellate Tribunal
Oct 25, 2018
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

ITA 653/PUN/2018

Attorney(S)

Sanket Joshi

JUDGES

MS.SUSHMA CHOWLAANIL CHATURVEDI

ACTS

sections 154 & 200A and 200A r.w.s. 234E of the Income-tax Act, 1961 (in short the Act).

Rule 31A of the Income Tax Rules, 1962 (in short the Rules).

clause (c) to (f) of sub-section (1) of Section 200A

FINANCE ACT 2015

FINANCE ACT 2012

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Smart Summary (Beta)

Consolidated Summary of ITAT Pune Order dated 25.10.2018

Factual and Procedural Background

This consolidated order relates to two separate bunches of appeals filed by different assessees — Medical Superintendent Rural Hospital and Junagade Healthcare Pvt. Ltd. — against orders of CIT(A)-3, Nashik dated 20.04.2018 and 21.02.2018, respectively. The appeals concern levies arising from intimation/orders under section 200A and from orders under section 154 of the Income-tax Act, 1961 and the levy of late filing fees under section 234E (where section 200A was invoked to process TDS statements in Form 24Q). Hearing took place on 03.10.2018 and the pronouncement of this consolidated decision was on 25.10.2018.

In the lead matter described in the order (ITA No.651/PUN/2018) the assessee had filed TDS returns in Form 24Q for various quarters across assessment years 2013-14, 2014-15 and 2015-16. The Central Processing Centre (CPC) had processed the returns and levied late filing fees under section 234E for multiple quarters (specific amounts for each quarter and year are recorded in the opinion). The assessee challenged the levy before the CIT(A). In the Junagade Healthcare matters the appeals were filed against orders rejecting rectification applications under section 154 which had sought to challenge similar intimation/levy of fees.

Legal Issues Presented

  1. Whether late filing fees under section 234E can be levied by issuing intimation under section 200A in respect of TDS statements/returns that relate to periods prior to 01.06.2015 (i.e., whether the amendment to section 200A by Finance Act, 2015 is retrospective or prospective in effect).
  2. In cases where TDS returns were filed belatedly after 01.06.2015 or processed after 01.06.2015 but relate to tax-deduction periods prior to 01.06.2015, whether the Assessing Officer was empowered to levy fees under section 234E via section 200A.
  3. In appeals filed against orders passed under section 154, whether the period of limitation for filing appeal before the CIT(A) is to be computed from the date of intimation under section 200A or from the date of the section 154 order (i.e., the correct computation of limitation for appeals against s.154 orders).

Arguments of the Parties

Assessees' Arguments

  • The levy of late filing fees under section 234E (by intimation under section 200A) for periods prior to 01.06.2015 was not permissible because the enabling amendment to section 200A came into force only on 01.06.2015; thus the amendment has prospective effect and cannot be used to charge fees for earlier periods.
  • The assessee in the lead case contended that though there may have been delay in filing of TDS returns, there was no delay in payment of taxes. It also raised factual difficulties (rural location, transportation/communication problems, lack of familiarity with provisions), and relied on the ratio of Tribunal decisions (for example Gajanan Construction v. DCIT and Swami Vivekanand Vidyalaya v. DCIT (CPC)-TDS) and High Court decisions (notably Fatheraj Singhvi v. Union of India — Karnataka High Court) which supported non-levy in similar circumstances.
  • In Junagade Healthcare matters, the assessee argued that appeals were filed against orders under section 154, so the limitation period for filing the appeal before the CIT(A) should be computed from the date of the section 154 order (date of rejection of rectification), not from the date of intimation under section 200A.

Revenue's Arguments

  • The Departmental Representative relied on the orders of the authorities below (CIT(A) and CPC) that had upheld the levy of fee under section 234E on the basis that returns were processed and/or filed after the relevant amendment and therefore the fee could be levied by intimation under section 200A.
  • The CIT(A) in at least one case relied on the decision of the Gujarat High Court in Rajesh Kourani v. Union of India, which had taken a view permitting levy of fees under section 234E in the manner challenged by the assessees.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gajanan Construction Vs. DCIT (2016) 73 taxmann.com 380 (Pune Trib.) Cited by the assessee as a Tribunal ratio relevant to levy of fees under section 234E in CPC/TDS processing cases. Noted in the record as a precedent relied upon by the assessee; used by the Tribunal as part of the body of Tribunal decisions supporting the assessee's position.
Swami Vivekanand Vidyalaya Vs. DCIT (CPC)-TDS, Ghaziabad (ITA Nos.2377/PUN/2017 to 2386/PUN/2017; decided 21.12.2017) Tribunal decision holding that where amendment to section 200A(1) is prospective, AO was not empowered to charge section 234E fees for periods prior to 01.06.2015. Relied upon by the assessees and applied by the Tribunal in the present consolidated order to support deletion of fees for periods prior to 01.06.2015.
Maharashtra Cricket Association Vs. DCIT (CPC)-TDS (ITA Nos.560/PN/2016 & 561/PN/2016, 1018/PN/2016 to 1023/PN/2016; order dated 21.09.2016) Tribunal held amendment to section 200A(1) procedural/prospective and AO could not charge section 234E fees for periods prior to 01.06.2015. Quoted at length in the opinion and applied as a leading Tribunal authority supporting the view that intimation under section 200A could not validly charge section 234E fees for pre-1.6.2015 periods.
Vidya Vardhani Education and Research Foundation (ITA Nos.1887 to 1893/PUN/2016; order dated 13.01.2017) Applied the proposition that amendment to section 200A was prospective; pre-1.6.2015 levies under section 234E by intimation under section 200A are not permissible. Identified as one of the Tribunal decisions applying the same proposition and relied upon by the Tribunal in the consolidated decision.
Medical Superintendent Rural Hospital Vs. ACIT (CPC)-TDS (ITA Nos.2072 & 2073/PUN/2017; order dated 21.12.2017) Tribunal decision applying the prospective-effect proposition to delete section 234E fees charged via section 200A intimations for periods prior to 01.06.2015; also addressed limitation computation in related appeals. Applied by the present Bench; the present consolidated order refers to and follows the view taken in this decision.
Fatheraj Singhvi Vs. Union of India (2016) 73 taxmann.com 252 (Karnataka HC) Held that the amendment to section 200A (w.e.f. 01.06.2015) is prospective and not retrospective; therefore intimation/demands under section 200A for computation/levy of fee under section 234E for periods prior to 01.06.2015 are not maintainable. Relied upon by the Tribunal as binding High Court authority supporting the assessee's position; central to the Tribunal's conclusion that levies for pre-1.6.2015 periods must be deleted.
Rajesh Kourani Vs. Union of India (2017) 83 taxmann.com 137 (Gujarat HC) High Court decision taking a view differing from Karnataka HC, holding that it was open for the Revenue to charge fees in terms of section 234E. Noted by the CIT(A) and discussed by the Tribunal; the Tribunal observed a conflict between High Courts and applied the rule of following the decision favorable to the assessee in the absence of a jurisdictional High Court decision to the contrary.
CIT Vs. M/s. Vegetable Products Ltd. (1973) 88 ITR 192 (SC) Supreme Court principle cited for the proposition that where there is a difference of opinion between different High Courts, the decision in favour of the assessee should be followed in the absence of a contrary decision by the jurisdictional High Court. Applied by the Tribunal to justify following the Karnataka High Court decision in favour of the assessee where High Courts were in conflict on the issue.
Sudarshan Goyal Vs. DCIT (2018) 194 TTJ UO (Agra) (UO) Referenced by the assessee as supporting authority in the context of applying High Court/Tribunal precedent. Cited in the record as supportive authority relied upon by the assessee; used as part of the appellate arguments supporting deletion.
Rashmikant Kundalia Vs. Union of India (2015) 54 taxmann.com 200 (Bombay HC) Bombay High Court decision on constitutional validity of provisions of section 234E (held to be ultra vires) but did not decide the amendment to section 200A effected w.e.f. 01.06.2015. Noted in the record; the Tribunal observed that this decision had not addressed the question of the effect of the 2015 amendment to section 200A and therefore did not alter the Tribunal's reliance on the Karnataka High Court's view on prospective effect.

Court's Reasoning and Analysis

The Tribunal reviewed the factual matrix and the competing authorities and proceeded by reference to earlier Tribunal decisions and the Karnataka High Court decision in Fatheraj Singhvi (paras 21-22 reproduced in the opinion). The key steps in the Tribunal's analysis were:

  1. The Tribunal accepted the proposition established in prior Tribunal decisions (including Maharashtra Cricket Association and Swami Vivekanand Vidyalaya) that the amendment to section 200A(1) introducing explicit enabling clauses for adjustment/levy of fees under section 234E was to be treated as prospective in nature and not retrospective.
  2. The Tribunal relied on the Karnataka High Court decision in Fatheraj Singhvi, which analyzed the nature of the amendment and concluded that the substitution (clause (c) to (f) of sub-section (1) of section 200A) has prospective effect; therefore demands under section 200A for computation and intimation of payment of fee under section 234E could not be made for periods prior to 01.06.2015.
  3. Applying those authorities, the Tribunal held that even where TDS returns were filed belatedly after 01.06.2015, or even where the returns were processed after 01.06.2015, if the intimation/demand related to tax-deduction periods prior to 01.06.2015, the Assessing Officer could not validly levy fees under section 234E by issuing intimation under section 200A. The date of the taxing period (period of deduction), not merely the date of filing or date of processing, determined applicability.
  4. The Tribunal considered that CIT(A) had relied on the Gujarat High Court decision in Rajesh Kourani which took a contrary view. The Tribunal explained that where High Courts differ on an issue, the decision in favour of the assessee is to be followed in the absence of a contrary decision by the jurisdictional High Court, citing the Supreme Court in CIT v. M/s. Vegetable Products Ltd. Accordingly, the Tribunal followed the Karnataka High Court's decision in Fatheraj Singhvi, which was favourable to the assessees.
  5. With specific reference to the Junagade Healthcare appeals that had been dismissed by the CIT(A) as barred by limitation, the Tribunal analyzed the procedural posture: the appeals were against orders passed under section 154 (rectification orders). The Tribunal concluded that the period for filing an appeal to the CIT(A) against a section 154 order must be computed from the date of the section 154 order (the date of rejection of rectification), not from the earlier date of intimation under section 200A. Thus, the CIT(A) erred in computing limitation from the date of intimation rather than from the date of the section 154 order.
  6. The Tribunal explicitly noted the sequence of decisions from various benches and High Courts and applied the line of authorities that supported the prospective effect of the 2015 amendment to section 200A. Where assessees had already paid fees after intimation without paying under protest, the Karnataka High Court had indicated those payers could not reopen the issue (this observation was recorded from the cited HC judgment). The Tribunal limited its relief to the appeals before it in accordance with the authorities it followed.

Holding and Implications

Holding: The Tribunal's core rulings are summarized as follows:

  • The appeals are allowed.
  • The intimation(s) issued by the Assessing Officer under section 200A of the Act which sought to levy late filing fees under section 234E in respect of periods prior to 01.06.2015 do not stand, and the demands raised by charging such fees are not valid and are deleted.
  • Where appeals were dismissed by the CIT(A) as time-barred because limitation was computed from the date of intimation under section 200A rather than from the date of the section 154 order, the CIT(A) erred; the limitation period for appeals against section 154 orders must be computed from the date of the section 154 order.

Implications:

  • Direct effect on the parties: The late filing fees charged under section 234E for TDS returns/statements relating to periods prior to 01.06.2015 were deleted and the assessees' appeals were allowed on merits. Junagade Healthcare's appeals could not be dismissed on the basis of limitation computed from the date of intimation; the correct computation is from the date of the section 154 order.
  • Broader precedent: The Tribunal expressly followed prior Tribunal decisions and the Karnataka High Court's view that the 01.06.2015 amendment to section 200A is prospective. The opinion records that there was conflicting authority (Gujarat High Court), but applied the principle (from CIT v. M/s. Vegetable Products Ltd.) that where High Courts differ, the view favourable to the assessee should be followed in the absence of a contrary decision of the jurisdictional High Court. The order does not state that it sets a new legal principle beyond applying and following the cited authorities.

Order pronounced on 25th October, 2018. The consolidated result: all the appeals of the assessees were allowed.

Show all summary ...

PER SUSHMA CHOWLA, JM: This bunch of appeals filed by two different assessee are against separate orders of CIT(A)-3, Nashik, dated 20.04.2018 and 21.02.2018, respectively, relating to different assessment years against orders passed under sections 154 & 200A and 200A r.w.s. 234E of the Income-tax Act, 1961 (in short the Act). Date of Hearing : 03.10.2018 Date of Pronouncement: 25.10.2018 ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018

2. The bunch of present appeals relating to two different assessee on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience.

3. First bunch of appeals relate to Medical Superintendent Rural Hospital and the second bunch of appeals relate to Junagade Healthcare Pvt. Ltd. Both the bunches relate to similar issue of levy of charges under section 200A r.w.s. 234E of the Act. In order to adjudicate the issues, we refer to the facts and issues in ITA No.651/PUN/2018.

4. The assessee in ITA No.651/PUN/2018 has raised the following grounds of appeal:- 1] The learned CIT(A) erred in upholding the levy of late fee u/s 234E of Rs.3,000/- in the intimation order u/s 200A passed in respect of TDS statement filed in Form 24Q for Quarter 2 of A.Y. 2013-14. 2] The learned CIT(A) failed to appreciate that the levy of late fee u/s 234E in the intimation order passed u/s 200A for A.Y. 2013-14 (Q2 24Q was bad in law and hence, the same ought to have been deleted.

5. Briefly, in the facts of the case, the assessee had furnished TDS returns for different quarters in Form No.24Q relating to assessment years 2013-14, 2014-15 and 2015-16. The said TDS returns were processed and late filing fees was charged under section 234E of the Act for default in quarter No.2 in assessment year 2013-14, late fees of 3,000/- was levied, for quarter No.3, 4,500/- and for quarter No.4, 1,67,490/- was levied. Similarly, for four quarters of assessment year 2014-15, late fees under section 234E of the Act was levied at 3,000/-, 8,400/-, 6,000/- and 1,99,016/-. In assessment year 2015-16, for quarter No.1, 1,19,000/-, for quarter No.2, 34,350/-, for quarter No.3, 34,500/- and for quarter No.4, 1,60,970/- was levied. The assessee was held to have defaulted in filing TDS returns, hence late filing fees ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018 were levied under section 234E of the Act while sending intimation under section 200A of the Act.

6. Before the CIT(A), first plea of assessee was that there was no delay in payment of taxes though there was delay in filing of TDS returns. It was explained that the assessee department was based in rural area and there was problem of transportation and communication and the department was not well versed with income tax provisions. Reliance was placed on the ratio laid down by the Pune Bench of Tribunal in the case of Gajanan Construction Vs. DCIT (2016) 73 taxmann.com 380 (Pune Trib.). The CIT(A) observed that as per section 200(3) of the Act inserted by Finance Act, 2006 w.e.f. 2005, the deductor was responsible for preparing TDS statement and delivering the TDS statements to the concerned authority as per Rule 31A of the Income Tax Rules, 1962 (in short the Rules). Further, the deductor was required to deliver the TDS statements within time prescribed. However, many of the deductors were not filing TDS returns in time. Hence, the Legislature brought in section 234E of the Act to provide effective deterrence as is apparent from Explanatory Notes to Finance Act, 2012, which provided levy of fees @ 200/- per day. The CIT(A) observed that the CPC, TDS accordingly passed orders levying late fees under section 234E of the Act r.w.s. 200A(1) of the Act in case of delayed filing of return. Since many Courts had held that there was no enabling provision under section 200A of the Act before 01.06.2015 to levy fees under section 234E of the Act, so section 200A of the Act was amended w.e.f. 01.06.2015 by Finance Act, 2015, which specifically provides levy of late filing fees under section 234E of the Act while processing the return under section 200A of the Act. The CIT(A) took note of the decision of Pune Bench of Tribunal, wherein it was decided that prior to 01.06.2015, there was no enabling provision in section ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018 200A of the Act for making adjustment in respect of statements filed by assessee with regard to tax deducted at source, by levying late filing fees under section 234E of the Act. Thus, the Assessing Officer could not make any adjustment other than the ones prescribed in section 200A of the Act. The Assessing Officer could make adjustment relating to levying of late filing fees under section 234E of the Act only w.e.f. 01.06.2015. He further observed that the date of processing was thus important. In the instant case of assessee, not only the processing was done after 01.06.2015 but the returns for all the quarters were filed after amendment to section 200A of the Act. He acknowledged that late filing fees under section 234E of the Act related to financial years 2012-13, 2013-14, 2014-15 and 2015-16, wherein TDS returns were filed after the amendment i.e. 01.06.2015 and intimation under section 200A of the Act was also sent. He further referred to the decisions of Honble Bombay High Court and Honble High Court of Karnataka, wherein the constitutional validity of section 234E of the Act has been upheld. He then referred to recent decision of the Honble High Court of Gujarat, in the case of Rajesh Kourani Vs. Union of India (2017) 83 taxmann.com 137 (Guj), which had differed from the view taken by the Honble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (2016) 73 taxmann.com 252 (Kar) and held that it was always open for the Revenue to charge fees in terms of section 234E of the Act. Since the returns of TDS were filed after 2016 and were processed after 2016 when there was enabling provision in section 200A of the Act for levying late fees under section 234E of the Act, late filing fees levied by Assessing Officer were upheld by CIT(A).

7. The assessee is in appeal against order of CIT(A). ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018

8. The learned Authorized Representative for the assessee pointed out that the issue raised in the present appeals is squarely covered by the orders of Tribunal in the case of Medical Superintendent Rural Hospital with lead order in the case of Swami Vivekanand Vidyalaya Vs. DCIT (CPC)-TDS, Ghaziabad in ITA Nos.2377/PUN/2017 to 2386/PUN/2017, decided on 21.12.2017, wherein the issue was decided relying on other decisions of Pune Bench of Tribunal and it was held that where the amendment to section 200A(1) of the Act was prospective in nature, then Assessing Officer while processing TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Accordingly, late filing fees charged under section 234E of the Act was deleted. He further referred to the decision of the Honble High Court of Karnataka in Fatheraj Singhvi Vs. Union of India (supra), wherein it has been laid down that demand raised under section 200A of the Act for computation and intimation for the payment of fees under section 234E of the Act could not be made in purported exercise of power under section 200A of the Act for the period of respective assessment years prior to 01.06.2015. He also pointed out that impugned notices under section 200A of the Act for computation and intimation for payment of fees under section 234E of the Act as they relate to for the period of tax deducted prior to 1st day of June, 2015 were set aside. The learned Authorized Representative for the assessee pointed out that CIT(A) has relied on the decision of the Honble High Court of Gujarat in Rajesh Kourani Vs. Union of India (supra) and not relied on the decision of Honble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra). However, the decision in favour of assessee is to be applied. For this proposition, he relied on the ratio laid down by the Hon'ble Supreme Court in CIT Vs. M/s. Vegetable Products Ltd. (1973) 88 ITR 192 (SC) and ratio laid down by Agra ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018 Bench of Tribunal in Sudarshan Goyal Vs. DCIT (2018) 194 TTJ UO (Agra)(UO)

9. In respect of second bunch of appeals in Junagade Healthcare Pvt. Ltd., the learned Authorized Representative for the assessee pointed out that the issue is identical. However, the CIT(A) held the appeals filed by assessee to be delayed. In this regard, he pointed out that appeals filed by assessee were not against intimation issued by Assessing Officer but against the order passed under section 154 of the Act and the CIT(A) has erred in computing the period in which the appeals has to be filed. He further pointed out that similar issue has been decided by Pune Bench of Tribunal in Swami Vivekanand Vidyalaya Vs. DCIT (CPC)-TDS, Ghaziabad (supra).

10. The learned Departmental Representative for the Revenue on the other hand, placed heavy reliance on the orders of authorities below.

11. We have heard the rival contentions and perused the record. The issue arising in the present bunch of appeals is against levy of late filing fees under section 234E of the Act while issuing intimation under section 200A of the Act, in the first bunch of appeals. The second bunch of appeals in the case of Junagade Healthcare Pvt. Ltd. is against order of Assessing Officer passed under section 154 of the Act rejecting rectification application moved by assessee against intimation issued levying late filing fees charged under section 234E of the Act. The case of assessee before us is that the issue is squarely covered by various orders of Tribunal, wherein the issue has been decided in respect of levy of late filing fees under section 234E of the Act, in the absence of empowerment by the Act upon Assessing Officer to levy such fees while issuing ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018 intimation under section 200A of the Act. The Tribunal vide order dated 21.09.2016 with lead order in ITA Nos.560/PN/2016 & 561/PN/2016, 1018/PN/2016 to 1023/PN/2016 in Maharashtra Cricket Association Vs. DCIT (CPC)-TDS, Ghaziabad, relating to assessment years 2013-14 and 2014-15 for the respective quarters deliberated upon the issue and held as under:-

34. Accordingly, we hold that the amendment to section 200A(1) of the Act is procedural in nature and in view thereof, the Assessing Officer while processing the TDS statements / returns in the present set of appeals for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Hence, the intimation issued by the Assessing Officer under section 200A of the Act in all these appeals does not stand and the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law.

12. The said proposition has been applied in the next bunch of appeals with lead order in Vidya Vardhani Education and Research Foundation in ITA Nos.1887 to 1893/PUN/2016 and others relating to assessment years 2013-14 and 2014-15 vide order dated 13.01.2017 and also in Swami Vivekanand Vidyalaya Vs. DCIT(CPC)-TDS (supra) and Medical Superintendant Rural Hospital Vs. ACIT (CPC)-TDS in ITA Nos.2072 & 2073/PUN/2017, order dated 21.12.2017, which has been relied upon by the learned Authorized Representative for the assessee.

13. The Honble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra) had also laid down similar proposition that the amendment to section 200A of the Act w.e.f. 01.06.2015 has prospective effect and is not applicable for the period of respective assessment years prior to 01.06.2015. The relevant findings of the Honble High Court are in paras 21 and 22, which read as under:-

21. However, if Section 234E providing for fee was brought on the state book, keeping in view the aforesaid purpose and the intention then, the other ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018 mechanism provided for computation of fee and failure for payment of fee under Section 200A which has been brought about with effect from 1.6.2015 cannot be said as only by way of a regulatory mode or a regulatory mechanism but it can rather be termed as conferring substantive power upon the authority. It is true that, a regulatory mechanism by insertion of any provision made in the statute book, may have a retroactive character but, whether such provision provides for a mere regulatory mechanism or confers substantive power upon the authority would also be a aspect which may be required to be considered before such provisions is held to be retroactive in nature. Further, when any provision is inserted for liability to pay any tax or the fee by way of compensatory in nature or fee independently simultaneously mode and the manner of its enforceability is also required to be considered and examined. Not only that, but, if the mode and the manner is not expressly prescribed, the provisions may also be vulnerable. All such aspects will be required to be considered before one considers regulatory mechanism or provision for regulating the mode and the manner of recovery and its enforceability as retroactive. If at the time when the fee was provided under Section 234E, the Parliament also provided for its utility for giving privilege under Section 271H(3) that too by expressly put bar for penalty under Section 272A by insertion of proviso to Section 272A(2), it can be said that a particular set up for imposition and the payment of fee under Section 234E was provided but, it did not provide for making of demand of such fee under Section 200A payable under Section 234E. Hence, considering the aforesaid peculiar facts and circumstances, we are unable to accept the contention of the learned counsel for respondent-Revenue that insertion of clause (c) to (f) under Section 200A(1) should be treated as retroactive in character and not prospective.

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 under Section 200A, the aforesaid view will not permit the deductor to reopen the said question unless he has made payment under protest.

14. The Honble High Court thus held that where the impugned notices given by Revenue Department under section 200A of the Act were for the period prior to 01.06.2015, then same were illegal and invalid. Vide para 27, it was further held that the impugned notices under section 200A of the Act were for computation and intimation for payment of fees under section 234E of the Act as they relate for the period of tax deducted at source prior to 01.06.2015 were being set aside. ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018

15. In other words, the Honble 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 Honble High Court. In view of said proposition being laid down by the Honble 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 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.

16. We hold that the issue raised in the present bunch of appeals is identical to the issue raised before the Tribunal in different bunches of appeals and since the amendment to section 200A of the Act was prospective in nature, the Assessing Officer while processing TDS returns / statements for the period prior to 01.06.2015 was not empowered to charge late filing fees under section 234E of the Act, even in cases where such TDS returns were filed belatedly after June, 2015 and even in cases where the Assessing Officer processed the said ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018 TDS returns after June, 2015. Accordingly, we hold that intimation issued by Assessing Officer under section 200A of the Act in all the appeals does not stand and the demand raised by charging late filing fees under section 234E of the Act is not valid and the same is deleted.

17. Before parting, we may also refer to the order of CIT(A) in relying on the decision of Honble High Court of Gujarat in Rajesh Kourani Vs. Union of India (supra). On the other hand, the learned Authorized Representative for the assessee has pointed out that the issue is settled in favour of assessee by the Honble High Court of Karnataka in the case of Fatheraj Singhvi Vs. Union of India (supra). Since we have already relied on the said ratio laid down by the Honble High Court of Karnataka, the CIT(A) has mis-referred to both decisions of Honble High Court of Karnataka and Honble High Court of Gujarat; but the CIT(A) has failed to take into consideration the settled law that where there is difference of opinion between different High Courts on an issue, then the one in favour of assessee needs to be followed as held by the Hon'ble Supreme Court in CIT Vs. M/s. Vegetable Products Ltd. (supra), in the absence of any decision rendered by the jurisdictional High Court. The Honble Bombay High Court in Rashmikant Kundalia Vs. Union of India (2015) 54 taxmann.com 200 (Bom) had decided the constitutional validity of provisions of section 234E of the Act and had held them to be ultra vires but had not decided the second issue of amendment brought to section 200A of the Act w.e.f. 01.06.2015. In view thereof, respectfully following the ratio laid down by the Honble High Court of Karnataka and Pune Bench of Tribunal in series of cases, we delete the late filing fees charged under section 234E of the Act for the TDS returns for the period prior to 01.06.2015. ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018

18. Further before parting, we may also refer to the order of CIT(A) in the case of Junagade Healthcare Pvt. Ltd., where the CIT(A) had dismissed appeals of assessee being delayed for period of December, 2013 and July, 2014. The CIT(A) while computing delay had taken the date of intimation under section 200A of the Act as the basis, whereas the assessee had filed appeals before CIT(A) against the order passed under section 154 of the Act. The CIT(A) had noted that rectification application was filed in February, 2018 which was rejected by CPC on the same day. The CIT(A) was of the view that there was no merit in condonation of delay, wherein appeals were filed beyond the period prescribed. The assessee had filed appeals against the order passed under section 154 of the Act, hence the time period of appeals filed by assessee before the CIT(A) have to be computed from the date of 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.

19. We find similar issue has been decided by us in the case of Medical Superintendent Rural Hospital Vs. ACIT(CPC)-TDS (supra) and vide para 15, order dated 21.12.2017 it was held as under:-

15. 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. ITA Nos.651 to 661/PUN/2018 ITA Nos.1018 to 1028/PUN/2018

20. 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.

21. In the result, all the appeals of assessee are allowed. Order pronounced on this 25th day of October, 2018 Sd/- Sd/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / Pune; Dated : 25th October, 2018. GCVSR /Copy of the Order forwarded to :

1. / The Appellant

2. / The Respondent

3. CIT(A)-3, Nashik CIT, (TDS), Pune / DR A, ITAT, Pune; / Guard file. / BY ORDER, //True Copy// / Sr. Private Secretary , / ITAT, Pune

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