Milind Vasantrao Pimprikar,, Nashik v. Deputy Commissioner of Income-tax,,

ITA 1495/PUN/2015 | 2013-2014
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 149524514 RSA 2015
Assessee PAN AGGPK7326M
Bench Pune
Appeal Number ITA 1495/PUN/2015
Duration Of Justice 10 month(s) 13 day(s)
Appellant Milind Vasantrao Pimprikar,, Nashik
Respondent Deputy Commissioner of Income-tax,,
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 30-09-2016
Assessment Year 2013-2014
Appeal Filed On 16-11-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE . . ! # $ BEFORE SHRI R.K. PANDA AM AND SHRI VIKAS AWASTHY JM HEARD ON 29-08-2016 SL. NO. ITA NO(S). NAME OF APPELLANT NAME OF RESPONDENT ASST. YEAR QUARTER FORM 1-2 1292 & 1293/PN/2015 GAJANAN CONSTRUCTIONS PROP. GORAKHNATH KATKAR 6 SHIVAJI ROAD DAMODHAR CHAMBERS NASHIK 4212 001 PAN :AGGPK7326M DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-4 26Q 26Q 3 1229/PN/2015 ELITE MARBLES SR.NO.609 SHRI HARI KUTE MARG NEAR MAHAMARG BUS STAND NASHIK 422 001 PAN : AADFE4215A DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-4 26Q 4 1813/PN/2014 F.K. BHATEWARA (SALE DIVISION) 438 RAVIVAR PETH NASHIK PAN : AABFF7664A ITO (TDS) NASHIK 2013-14 QR-4 26Q 5 1742/PN/2014 VIRA CONSTRUCTION & DEVELOPERS 2 ND FLOOR RIDDHI PARK SHARANPUR ROAD CANADA CORNER NASHIK- 422 002 PAN : AAFFV0527J ITO (TDS) NASHIK 2013-14 QR-2 26Q 6 1741/PN/2014 PAWA CONSTRUCTION 2 ND FLOOR RIDDHI PARK SHARANPUR ROAD CANADA CORNER NASHIK- 422 002 PAN : AABFP7672A ITO (TDS) NASHIK 2013-14 QR-3 26Q 7-9 1413 TO 1415/PN/2015 SHRI SHARAD VISHRAM PATIL PROP. PNC INDUSTRIES B/55 MIDC AMBAD DIST. NASHIK 422 010 PAN : AILPP0885H DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-2 QR-3 27E 26Q 26Q 10-11 1376 & 1377/PN/2015 PROMOTERS & BUILDERS ASSOCIATION 4/5 SAHYADRI HOUSE MIDCO CIRCLE TRIMBAK ROAD NASHIK 422 002 PAN : AAATP5303P DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-4 26Q 26Q 12-13 1445 & 1446/PN/2015 AYURVED MAHAVIDYALAYA 1 GANESHWADI PANCHAVATI NASHIK 422 003 PAN : AABTA2900J DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-4 24Q 24Q 2 ASSESSEE BY : SL.NO.1 TO 9 12 TO 16 SHRI SANKET J OSHI SL.NO. 10 & 11 NONE (WRITTEN SUBMISSION) REVENUE BY : SHRI P.L. KUREEL 1 TO 16 HEARD ON 30-08-2016 SL. NO. ITA NO(S). NAME OF APPELLANT NAME OF RESPONDENT ASST. YEAR QUARTER FORM 1-3 192/PN/2016 1746 & 1747/PN/2016 ADV. JAYANT DATTATRAY JAIBHAVE 46A SUVICHAR GANGAPUR ROAD OLD PANDIT COLONY NASHIK 422 005 PAN :AEJPJ7599G DCIT CPC (TDS) GHAZIABAD 2013-14 QR.2 QR-3 QR.4 26Q 26Q 26Q 4-5 1696 & 1697/PN/2015 LOCUS SYSTEM 216 SICOF PLATTD ESTATE MIDC SATPUR NASHIK 422 007 PAN : AACFL9432D DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 26Q 26Q 6 1701/PN/2015 SHRI VISHWAS JAIDEV THAKUR 1 DAIWAT COLLEGE ROAD NEAR TIMES OF INDIA NASHIK 422 005 PAN :AAGPT6363B DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2014-15 QR-1 26Q 7-8 1556 & 1557/PN/2015 B.N. AGRAWAL CONSTRUCTION PVT. LTD. 30 TAPI NAGAR HINDU HOUSING SOCIETY BHUSAWAL 425 201 PAN : AACCB3975E DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 24Q 24Q 9-10 1558 TO 1559/PN/2015 B.N. AGRAWAL 30 TAPI NAGAR HINDU HOUSING SOCIETY BHUSAWAL 425 201 PAN : AAEFB8944J DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 26Q 26Q 11 1560/PN/2015 M/S.J.T. AGRAWAL 39 TAPI NAGAR HINDU HOUSING SOCIETY BHUSAWAL 425 201 PAN : AAHFJ2923N DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-3 26Q 12-13 1561 & 1562/PN/2015 B.N.A. INFRASTRUCTURE PVT. LTD. 30 TAPI NAGAR HINDU HOUSING SOCIETY BHUSAWAL 425 201 PAN : AADCB0219Q DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 24Q 24Q 14-15 1476 & 1477/PN/2015 PANKAJ TUKARAM PATIL W-198 MIDC INDUSTRIAL AREA AMBAD NASHIK 422 010 PAN : AFZPP 7773D DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 26Q 26Q 16 1595/PN/2015 YOGESH TIWARI 201 PRASANNA ARCADE OLD AGRA ROAD TRIMBAK ROAD NASHIK 422 001 PAN : AAJPT1566D DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-4 26Q 14-16 1423 1424 & 1428/PN/2015 SHRI SANJAY GANGADHAR NANDAN SANGAM PLOT NO.4 BEHIND AKASHWANI KENDRA NASHIK 422 001 PAN :ACOPN0031C DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-3 QR-4 QR-2 26Q 26Q 26Q 3 17 07/PN/2016 PRASHANT SUBHASHCHANDRA BIRLA 37 PRADHAN PARK M.G. ROAD NASHIK 422 001 PAN : AEJPB 0340K DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-3 24Q 18 1478/PN/2015 AYURVEDA SEVA SANGH 1 GANESHWADI PANCHAVATI NASHIK 422 003 PAN : AABTA2900J DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 24Q 19-21 1448 TO 1450/PN/2015 SHRI PRITAMSINGH AJMERSINGH BIRDI 30 SURJIT VILLA SUCHITA NAGAR BOMBAY AGRA ROAD NASHIK 422 009 PAN :ABRPB9612K DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2014-15 2013-14 2013-14 QR-1 QR-2 QR-3 26Q 26Q 26Q 22 1495/PN/2015 SHRI MILIND VASANTRAO PIMPRIKAR C/O. M/S.PIMPRIKAR HOSPITAL GOVIND NAGAR BEHIND PRAKASH HOTEL MUMBAI NAKA NASHIK PAN : NSKPO2039C ITO (APPEAL)- 3 NASHIK 2013-14 QR-4 26Q 23-24 1488 & 1489/PN/2015 SHRI RAMESH MURLIDHAR MALU M/S RMM AND ASSOCIATES SARAJU-KUNJ NEAR BHUJBAL FARM CIDCO NASHIK 422 009 PAN :ABFPM2450E DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 24Q 24Q 25-27 1473 TO 1475/PN/2015 SMT. SAVITRI TUKARAM PATIL PLOT NO. K-22 MIDC INDUSTRIAL AREA AMBAD NASHIK 422 010 PAN : AAXPP7583N DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 QR-4 26Q 26Q 26Q 28 190/PN/2016 SHRI NINAD S. PATIL DAULAT BUNGLOW SHARANPUR ROAD TILAKWADI NASHIK 422008 PAN : NSKNO1250E DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2014-15 QR-4 26Q 29 122/PN/2016 SHRI NILESH DHARMAPAL HANSWANI RISHIKESH OPP. MODEL COLONY COLLEGE ROAD NASHIK 422 007 PAN : ABNPH2855C DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2015-16 QR-1 26Q 30-31 1572 & 1574/PN/2015 VARIYAN REALTY TULSI VILLA PURNAVAD NAGAR NEAR AKASHWANI TOWER GANGAPUR ROAD DIST. NASHIK 422 005 PAN :AAJFV3936B DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 26Q 26Q ASSESSEE BY : NONE SR.NOS.-1 TO 3 17 22 AND 28 : SHRI SANKET JOSHI - SR.NOS. 4 TO 15 18 19 TO 2 1 AND 25 TO 27 : WRITTEN SUBMISSION - SR.NO. 16 23 TO 24 29 TO 31 REVENUE BY : SHRI P.L. KUREEL - SR.NOS. 1 TO 3 14 TO 17 28 TO 32 SHRI HITENDRA NINAWE - SR.NOS. 4 TO 13 AND 18 TO 31 4 HEARD ON 06-09-2016 SL. NO. ITA NO(S). NAME OF APPELLANT NAME OF RESPONDENT ASST. YEAR QUARTER FORM 1-2 1255 & 1256/PN/2015 SHREE CHAITANYA MEDICAL FOUNDATION 02 BHALCHAND SOCIETY SHIKHAREWADI NASHIK ROAD NASHIK 422 101 PAN : AAETS7385Q DCIT CPC (TDS) GHAZIABAD 2013-14 QR.2 QR-3 26Q 26Q 3-5 1430 TO 1432/PN/2015 SHUBHADA RAJESH BORA 2 PARK AVENUE OPP. HOLARAM COLONY SADHU VASWANI ROAD NASHIK -422002 PAN : AEQPB1355M DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 QR-4 26Q 26Q 26Q 6-10 1283 TO 1287/PN/2015 SIMOR TECH POLYMERS LTD. 4 LUNKAD TOWER NEAR GPO JILHA PETH JANGAON 425 001 PAN : AAFCS9223D DCIT CPC (TDS) GHAZIABAD UTTARPRADESH 2013-14 QR-2 QR-3 QR-4 QR-2 QR-4 24Q 24Q 24Q 26Q 26Q ASSESSEE BY : SR.NOS. 1 TO 5 7 TO 10 NONE-WRITT EN SUBMISSION REVENUE BY : SR.NOS. 1 TO 10 SHRI P.L. KUREEL HEARD ON 08-09-2016 SL. NO. ITA NO(S). NAME OF APPELLANT NAME OF RESPONDENT ASST. YEAR QUARTER FORM 1-3 NOS.1337 TO 1339/PN/2015 ANAND HATCHERIES PVT. LTD. 2 ND FLOOR RUSHIRAJ HOUSE BEHIND KOTAT MAHINDRA BANK THATTE NAGAR COLLEGE ROAD NASHIK 422 005 PAN : AADCA3004G DCIT CPC (TDS) GHAZIABAD 2013-14 QR.2 QR-3 QR-4 24Q 24Q 24Q ASSESSEE BY : NONE-WRITTEN SUBMISSION REVENUE BY : SHRI P.L. KUREEL CORRIGENDUM AFTER SIGNING OF THE ORDER IT WAS NOTICED THAT CERTAIN LINES IN PARA 16 OF THE ORDER INADVERTENTLY REMAINED TO BE INSE RTED. FURTHER CERTAIN ERRORS ALSO CREPT IN. THEREFORE THE SAME IS MODIFIE D AND THE ORDER OF THE TRIBUNAL FROM PARA 16 ONWARDS BE READ AS UNDER: 16. AFTER HEARING THE RIVAL SUBMISSIONS BY BOTH SIDES WE FIN D IDENTICAL ISSUE HAS BEEN DECIDED BY THE COORDINATE BENCH OF THE 5 TRIBUNAL IN THE CASE OF MAHARASHTRA CRICKET ASSOCIATION V S. DCIT (CPC) TDS GHAZIABAD VIDE ITA NOS. 560 & 561/PN/2016 AND ITA NOS. 1018 TO 1023/PN/2016 AND BUNCH OF OTHER APPEALS O RDER DATED 21-09-2016 TO WHICH ONE OF US (AM) IS A PARTY. THE RELEVA NT EXTRACTS OF THE FINDING OF THE TRIBUNAL READS AS UNDER : 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE ARISING IN THIS BUNCH OF APPEALS IS AGAINST LEVY OF FEES UNDER SECTION 234E OF THE ACT. IN ORDER TO ADJUDICATE THE ISSUE FIRST REFERENCE IS BEING MADE TO THE RELEVANT PROVISIONS OF THE ACT. UNDER CH APTER XVII HEADED COLLECTION AND RECOVERY OF TAXES AND UNDER CLAUSE B DEDUCTION AT SOURCE THE STATUTE LAYS DOWN THE DUTY OF THE PAYER OF CERTAIN AMOUNTS TO DEDUCT TAX AT SOURCE UNDER SECTIONS 192 TO 194LD 195 TO 196D OF THE ACT. UNDER SECTION 198 OF THE ACT IT IS PROVIDED THAT THE TAX DEDUCTED AT SOURCE SHALL FOR THE PURPOSE OF COMPUTING THE INCOME O F ASSESSEE BE DEEMED TO BE INCOME RECEIVED. UNDER SECTION 199 OF THE ACT IT IS FURTHER PROVIDED THAT ANY DEDUCTION MADE IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WHOSE INCOME THE DEDUCTION WAS MADE. THE SUM REFERRED TO IN SUB-SECTION (1A) OF SECTI ON 192 OF THE ACT AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS THE TAX PAID ON BEHALF OF THE PERSON IN RESPECT OF WHOSE INCOME SUCH PA YMENT OF TAX HAS BEEN MADE. 17. SECTION 200 OF THE ACT LAYS DOWN THE DUTY OF THE PERSON DEDUCTING TAX WHICH READS AS UNDER:- 200. (1) ANY PERSON DEDUCTING ANY SUM IN ACCORDANCE WIT H THE FOREGOING PROVISIONS OF THIS CHAPTER SHALL PAY WITH IN THE PRESCRIBED TIME THE SUM SO DEDUCTED TO THE CREDIT OF THE CENT RAL GOVERNMENT OR AS THE BOARD DIRECTS. (2) ANY PERSON BEING AN EMPLOYER REFERRED TO IN SU B-SECTION (1A) OF SECTION 192 SHALL PAY WITHIN THE PRESCRIBED TIME THE TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DI RECTS. (2A) IN CASE OF AN OFFICE OF THE GOVERNMENT WHERE THE SUM DEDUCTED IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CHAPTER OR TAX REFERRED TO IN SUB-SECTION(1A) OF SECTION 192 HAS B EEN PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHOUT THE PRODUC TION OF A CHALLAN THE PAY AND ACCOUNTS OFFICER OR THE TREASU RY OFFICER OR THE CHEQUE DRAWING AND DISBURSING OFFICER OR ANY OTHER PERSON BY WHATEVER NAME CALLED WHO IS RESPONSIBLE FOR CREDIT ING SUCH SUM OR TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT SHALL DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY OR TO THE PERSON AUTHORISED BY SUCH AUTHORITY A STATEMENT IN SUCH F ORM VERIFIED IN SUCH MANNER SETTING FORTH SUCH PARTICULARS AND WIT HIN SUCH TIME AS MAY BE PRESCRIBED. (3) ANY PERSON DEDUCTING ANY SUM ON OR AFTER THE 1S T DAY OF APRIL 2005 IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CHAPTER OR AS THE CASE MAY BE ANY PERSON BEING AN EMPLOYER RE FERRED TO IN SUB- SECTION (1A) OF SECTION 192 SHALL AFTER PAYING THE TAX DEDUCTED TO THE 6 CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRI BED TIME PREPARE SUCH STATEMENTS FOR SUCH PERIOD AS MAY BE PRESCRIBE D AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY OR THE PERSON AUTHORISED BY SUCH AUTHORITY SUCH STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRESCRIBED: PROVIDED THAT THE PERSON MAY ALSO DELIVER TO THE PRESCRIBED AUTHORITY A CORRECTION STATEMENT FOR RECTIFICATION OF ANY MISTAKE OR TO ADD DELETE OR UPDATE THE INFORMATION FURNISHED IN THE STATEMENT DELIVERED UNDER THIS SUB-SECTION IN SUCH FORM AND V ERIFIED IN SUCH MANNER AS MAY BE SPECIFIED BY THE AUTHORITY. 18. UNDER SECTION 200(1) OF THE ACT IT IS PROVIDED T HAT ANY PERSON DEDUCTING ANY SUM IN ACCORDANCE WITH THE PROVISIONS O F THE CHAPTER SHALL PAY WITHIN THE PRESCRIBED TIME THE SUM SO DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. UNDER SEC TION 200(2) OF THE ACT ANY PERSON BEING AN EMPLOYER AS REFERRED TO IN SUB-SECTION (1A) OF SECTION 192 OF THE ACT SHALL PAY WITHIN THE PRESCRIBED TIME TH E TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. UNDER SUB- SECTION (2A) OF THE ACT IT IS PROVIDED THAT WHERE TH E SUM HAS BEEN DEDUCTED IN ACCORDANCE WITH FOREGOING PROVISIONS OF T HE CHAPTER BY THE OFFICE OF THE GOVERNMENT THEN DUTY IS UPON THE TREA SURY OFFICER OR THE DRAWING & DISBURSING OFFICER OR ANY OTHER PERSON TO D ELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITIE S OR TO THE PERSON AUTHORIZED BY SUCH AUTHORITY STATEMENT IN SUCH FORM VERIFIED IN SUCH MANNER SETTING FORTH SUCH PARTICULARS WITHIN SUCH TIME AS MAY BE PRESCRIBED. UNDER SECTION 200(3) OF THE ACT SIMILAR RESPONSIBILITY IS ON ANY PERSON DEDUCTING ANY SUM ON OR AFTER FIRST DAY OF APRIL 2005 IN ACCORDANCE WITH FOREGOING PROVISIONS OF THE CHAPTER INCLUDING ANY PERSON AS AN EMPLOYER REFERRED TO IN SECTION 192(1A) O F THE ACT. THE ONUS IS UPON SUCH PERSON THAT HE SHALL AFTER PAYING THE TAX TO THE CREDIT OF CENTRAL GOVERNMENT WITHIN PRESCRIBED TIME PREPARE SU CH STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITY OR ANY PERSON SO A UTHORIZED SUCH STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PROVIDE D. THE DUTY IS UPON A PERSON DEDUCTING ANY SUM IN ACCORDANCE WITH VA RIOUS PROVISIONS UNDER THE CHAPTER AND ALSO UPON AN EMPLOYER WHO IS MA KING DEDUCTION OUT OF THE PAYMENTS MADE TO THE EMPLOYEES THEN SUB-SEC TION (3) REQUIRES THAT THE DEDUCTOR IS TO PREPARE A STATEMENT FOR SUCH P ERIOD AS MAY BE PRESCRIBED WHICH IS TO BE DELIVERED TO THE PRESCRIBED AUTHORITY IN SUCH FORM AND VERIFIED AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED. THE SAID STATEMENT IS TO BE DELIVERED WITHIN SUCH TIME AS MAY BE PRESCRIBED. 19. RULE 31A OF THE INCOME TAX RULES 1962 (IN SHORT THE RULES) PROVIDES THAT EVERY PERSON WHO IS RESPONSIBLE FOR DEDUCT ION OF TAX UNDER CHAPTER XVIIB SHALL IN ACCORDANCE WITH THE PROVISIONS OF SECTION 200(3) OF THE ACT DELIVER OR CAUSE TO BE DELIVERED THE QUAR TERLY STATEMENTS TO THE DIRECTOR GENERAL OF INCOME TAX (SYSTEMS) OR THE PERSON S AUTHORIZED BY THEM I.E. IN RESPECT OF DEDUCTIONS UNDER VARIOUS PROVI SIONS OF THE CHAPTER XVIIB. THE RULE FURTHER PROVIDES THAT THE STATEMENT S REFERRED TO IN SUB- RULE (1) ARE TO BE DELIVERED QUARTERLY AND THE STIPU LATED PERIOD OF DUE DATE OF FILING THE SAID STATEMENT IN RESPECT OF DEDUC TOR BEING AN OFFICE OF THE GOVERNMENT AND THE DEDUCTOR BEING OTHER THAN GO VERNMENT ARE PROVIDED. THE SUB-RULE (3) OF RULE 31A OF THE RULE S FURTHER PROVIDES THAT 7 THE STATEMENT REFERRED TO IN SUB-RULE (1) MAY BE FURN ISHED IN ANY OF THE FOLLOWING MANNERS I.E. BY WAY OF FURNISHING THE STATEM ENT IN PAPER FORM OR FURNISHING THE STATEMENT ELECTRONICALLY UNDER DIGI TAL SIGNATURE OR AFTER VERIFICATION. INITIALLY SUCH STATEMENT HAD TO BE FU RNISHED IN PAPER FORM AND LATER BY WAY OF AMENDMENT THE PROCEDURE FOR FU RNISHING THE STATEMENT ELECTRONICALLY WAS PROVIDED. ONCE THE STATE MENT HAS BEEN SO SUBMITTED BY THE DEDUCTOR OF TAX DEDUCTED AT SOURCE THEN PROCESSING OF STATEMENT IS AS PER THE PROVISIONS OF SECTION 200A OF TH E ACT. THE SAID SECTION WAS INSERTED BY THE FINANCE (NO.2) ACT 2009 W .E.F. 01.04.2010. THE SAID SECTION 200A OF THE ACT READS AS UNDER:- 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE O R A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDU CTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200 SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLOWING MANNER NAMELY: (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL B E COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST IF ANY SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY OR THE AMOUNT OF REFUND DU E TO THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AM OUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTION 201 AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED A ND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY OR THE AMOUNT OF REFUND DUE TO HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PU RSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR : PROVIDED THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FI NANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION.FOR THE PURPOSES OF THIS SUB-SECTION 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMEN T' SHALL MEAN A CLAIM ON THE BASIS OF AN ENTRY IN THE STATEMENT (I) OF AN ITEM WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH STATEMENT; (II) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOUR CE WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT. (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1) THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PR OCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUS LY DETERMINE THE TAX PAYABLE BY OR THE REFUND DUE TO THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION. 8 20. SECTION 200A OF THE ACT LAYS DOWN THE MANNER IN WHICH THE STATEMENTS OF TAX DEDUCTED AT SOURCE ARE TO BE PROCESSED FOR ISSUING THE INTIMATION. FIRST OF ALL THE SUMS DEDUCTIBLE UNDER T HE CHAPTER ARE TO BE COMPUTED AND INTEREST IF ANY SHALL BE COMPUTED ON T HE BASIS OF SUCH SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENTS AS PER CLAU SE (A) AND (B) UNDER SECTION 200A(1) OF THE ACT. CLAUSES (C) TO (F) REPRODUCED ABOVE WERE SUBSTITUTED FOR CLAUSES (C) TO (E) BY THE FINANCE ACT 2015 W.E.F. 01.06.2015. PRIOR TO THE SUBSTITUTION CLAUSES (C) TO (E) READ AS UNDER:- (C) THE SUM PAYABLE BY OR THE AMOUNT OF REFUND DU E TO THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AM OUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECT ION 200 AND SECTION 201 AND ANY AMOUNT PAID OTHERWISE BY WAY O F TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E BY OR THE AMOUNT OF REFUND DUE TO HIM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE DEDUCTOR. 21. AS PER NEWLY SUBSTITUTED CLAUSE (C) W.E.F. 01.06.20 15 THE FEES IF ANY IS TO BE COMPUTED IN ACCORDANCE WITH THE PROVISI ONS OF SECTION 234E OF THE ACT. HOWEVER UNDER THE EARLIER CLAUSE (C) THERE WAS NO SUCH PROVISION. 22. SECTION 234E(1) OF THE ACT PROVIDES THAT WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN TIME PRESCRIBED IN SECTION 200(3) OF THE ACT OR THE PROVISO TO SECTION 20 6C(3) OF THE ACT HE SHALL BE LIABLE TO PAY BY WAY OF FEES SUM OF RS.200/- FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. THE SAID PROVISIONS WERE INSERTED BY THE FINANCE ACT 2012 W.E.F. 01.07.2012. UNDER SUB-SECTI ON (2) IT IS FURTHER PROVIDED THAT THE AMOUNT OF FEES REFERRED TO IN SUB-SE CTION (1) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTABLE AS THE CASE MAY BE. SUB-SECTION (3) FURTHER LAYS DOWN THAT THE AMOUNT OF FEES REFERRED TO IN SUB-SECTION (1) SHALL BE PAID BEFORE DELIVERING OR CAU SING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB-SECTION 200(3) OF T HE ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT. THE PROVISIONS OF SAID SECTION HAVE BEEN MADE APPLICABLE TO A STATEMENT TO BE DELIVERED OR CAUSE TO BE DELIVERED ON OR AFTER THE FIRST DAY OF JULY 2012. 23. READING THE ABOVE SAID PROVISIONS OF THE ACT IT T RANSPIRES THAT WHERE TAX HAS BEEN DEDUCTED AT SOURCE BY A DEDUCTOR O UT OF THE ACCOUNT OF DEDUCTEE THEN THE ONUS IS UPON THE DEDUCTOR UNDER SECTION 200 OF THE ACT TO PREPARE A STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER WHICH IS PRESCRIBED UNDER THE ACT IN WHICH THE PARTIC ULARS OF TAX DEDUCTION AT SOURCE ARE TO BE PROVIDED AND THE SAID ST ATEMENT IS TO BE DELIVERED OR CAUSE TO BE DELIVERED WITHIN SUCH TIME A S MAY BE PRESCRIBED. RULE 31A OF THE RULES PROVIDED THE TIME LIMIT FOR TH E FURNISHING OF STATEMENT FOR TAX DEDUCTION AT SOURCE ON QUARTERLY BA SIS. SECTION 234E OF THE ACT LEVIES FEES FOR DEFAULT IN FURNISHING THE STAT EMENTS OF TAX DEDUCTED AT SOURCE. SUCH FEES IS TO BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SECTION 200( 3) OF THE ACT OR PROVISO TO SECTION 206C(3) OF THE ACT. IN OTHER WORD S IN CASE THE ASSESSEE HAS DEFAULTED IN NOT DELIVERING THE STATEMENT OR CAUSI NG TO DELIVER THE STATEMENT WITHIN TIME PRESCRIBED THEN HE IS LIABLE TO PAY THE FEES WHICH IS SO PRESCRIBED UNDER THE ACT AND SUCH FEES SHALL NOT EX CEED THE AMOUNT 9 OF TAX DEDUCTIBLE OR COLLECTABLE AT SOURCE BUT THE SA ME HAS TO BE PAID ALONG WITH STATEMENT WHICH IS TO BE DELIVERED UNDER T HE PROVISIONS OF SECTION 200(3) OF THE ACT. THOUGH THE STATEMENT OF T AX DEDUCTED AT SOURCE HAS TO BE FURNISHED BY THE DEDUCTOR NO DOUBT UNDER SECTION 200 OF THE ACT BUT THE SAME HAS TO BE PROCESSED BY THE PRESCRIBED AUTHORITY AS PER PROVISIONS OF SECTION 200A OF THE ACT. IN CASE THERE I S ANY VARIATION IN THE TAX SUM DEDUCTIBLE UNDER THE CHAPTER AND / OR THEIR PAYMENT THE ASSESSING OFFICER IS EMPOWERED TO MAKE ADJUSTMENTS IN THIS REGARD AND ALSO REJECT INCORRECT CLAIM MADE BY THE DEDUCTOR WHI CH IS APPARENT FROM THE INFORMATION IN THE STATEMENT FILED BY THE DEDUCT OR. FURTHER THE INCOME-TAX AUTHORITY IS AUTHORIZED TO CHARGE INTEREST IF ANY AND THE SAME SHALL BE COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE IN ADD ITION TO THE AMOUNT OF TAX DEDUCTED AT SOURCE WHICH IS TO BE PAID TO THE ACCOUNT OF TREASURY BY THE DEDUCTOR. IN CASE OF ANY DEFAULT IN TEREST IS TO BE CHARGED AGAINST SUCH DEDUCTOR AND THE SAME IS TO BE COMPUTED AS PER PROVISIONS OF SECTION 200A(1)(B) OF THE ACT. FURTHER IN ADDIT ION TO BOTH THESE AMOUNTS CLAUSE (C) TO SECTION 200A OF THE ACT PROVIDE S FEES TO BE LEVIED WHICH SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVI SIONS OF SECTION 234E OF THE ACT. THE SAID PROVISION TO CHARGE FEES BY THE PRESCRIBED AUTHORITY HAS BEEN SUBSTITUTED FOR EARLIER PROVISIONS B Y THE FINANCE ACT 2015 W.E.F. 01.06.2015. PRIOR TO THE SAID SUBSTITUTIO N THOUGH THE PROVISIONS OF SECTION 234E OF THE ACT FOR PAYMENT OF F EES FOR DEFAULT IN FURNISHING THE STATEMENT WERE INSERTED BY THE FINANCE ACT 2012 W.E.F. 01.07.2012 THE PRESCRIBED AUTHORITY DID NOT HAVE T HE POWER TO CHARGE THE SAID FEES WHILE PROCESSING THE QUARTERLY STATEMENTS / RETURNS UNDER SECTION 200A OF THE ACT. 24. NOW LOOKING AT VARIOUS PROVISIONS OF THE ACT TH E ISSUE NEEDS TO BE ADJUDICATED IN THE CASE OF ASSESSEE WHEREIN ADMITTEDLY TDS RETURNS WHICH WERE DEEMED TO BE FILED BY THE ASSESSEE WERE FILE D AFTER DELAY AND THE QUESTION WAS WHETHER THE ASSESSING OFFICER WHICH PROC ESSING THE INTIMATION UNDER SECTION 200A OF THE ACT COULD CHARG E LATE FEE UNDER THE PROVISIONS OF SECTION 234E OF THE ACT. THE ASSESSEE CLAIM S THAT THE ASSESSING OFFICER AT BEST COULD CHARGE THE DIFFERENCE IN TAX DEDUCTED AND NOT PAID IN TREASURY FROM THE DEDUCTOR AND / OR ANY INTEREST PAYABLE ON SUCH DEDUCTION OF TAX AT SOURCE. HOWEVER TILL SUBSTI TUTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT 2015 W.E.F. 01.06.2015 THE ASSESSING OFFICER WAS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. THE CASE OF REVENUE ON THE OTHER HAND WAS THAT IT WAS THE DUTY OF DEDUCTOR WHILE FURNISHING THE STATEMENT UNDER SECTION 200(3) OF THE ACT TO DEPOSIT THE FEES REFERRED TO IN SECTION 234 E(1) OF THE ACT. THE LEARNED CIT-DR STRESSED THAT FEES REFERRED TO IN SUB-SECT ION (1) HAD TO BE PAID WHILE DELIVERING OR CAUSING TO DELIVER THE STATE MENT IN ACCORDANCE WITH PROVISIONS OF SECTION 200(3) OF THE ACT OR THE PR OVISO TO SECTION 206C(3) OF THE ACT. HOWEVER VARIOUS REGULATIONS AND THE STATUTORY PROVISIONS IN THIS REGARD POINT OUT THAT UNDOUBTEDLY THE RESPONSIBILITY OF THE DEDUCTOR WAS TO DEPOSIT THE TAX DEDUCTED AT SOURCE IN TIME AND IF NOT SO THEN WITH INTEREST AND CONSEQUENTLY WHERE THE TAX WAS NOT PAID IN TIME AND INTEREST WAS NOT PAID IN TIME AND THEN WHER E THE STATEMENT OF TAX DEDUCTED AT SOURCE COULD NOT BE FILED BEFORE THE PRESCRIBED AUTHORITY WITHIN STIPULATED TIME THE ASSESSEE WAS LIABLE TO LEVY OF FEES UNDER SECTION 234E OF THE ACT. HOWEVER IN CASE ANY DEFAUL T OCCURS DUE TO THE NON-PAYMENT OF FEES BY THE ASSESSEE IN THIS REGARD THE N THE PROVISIONS WHICH HAS TO BE CONSIDERED IS SECTION 200A(1)(C) OF THE ACT. THE POWER TO CHARGE / COLLECT FEES AS PER PROVISIONS OF SECTION 234E OF THE ACT WAS VESTED WITH THE PRESCRIBED AUTHORITY UNDER THE ACT ON LY ON SUBSTITUTION OF EARLIER CLAUSE (C) TO SECTION 200A OF THE ACT BY THE FINANCE ACT 2015 W.E.F. 01.06.2015. ONCE ANY PROVISION OF THE ACT HAS BEEN M ADE APPLICABLE FROM 10 A RESPECTIVE DATE THEN THE REQUIREMENT OF THE STATUT E IS TO APPLY THE SAID PROVISIONS FROM THE SAID DATE. 25. IN RESPECT OF THE ISSUE RAISED BEFORE US IT IS CLEA R THAT THE PRESCRIBED AUTHORITY HAS BEEN VESTED WITH THE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT ONLY WITH REGARD TO LEVY OF FEES BY THE SUBSTITUTION MADE BY FINANCE (NO.2) ACT 2015 W.E.F. 01.06.2015. ONCE THE POWER HAS BEEN GIVEN UNDER WHICH ANY LEVY HAS TO BE IMPOSED UP ON TAX PAYER THEN SUCH POWER COMES INTO EFFECT FROM THE DATE OF SUBSTITUT ION AND CANNOT BE APPLIED RETROSPECTIVELY. THE SAID EXERCISE OF POWER H AS BEEN PROVIDED BY THE STATUTE TO BE FROM 01.06.2015 AND HENCE IS TO BE APPLIED PROSPECTIVELY. THERE IS NO MERIT IN THE CLAIM OF REV ENUE THAT EVEN WITHOUT INSERTION OF CLAUSE (C) UNDER SECTION 200A(1) OF THE ACT IT WAS INCUMBENT UPON THE ASSESSEE TO PAY FEES IN CASE THERE I S DEFAULT IN FURNISHING THE STATEMENT OF TAX DEDUCTED AT SOURCE. A DMITTEDLY THE ONUS WAS UPON THE ASSESSEE TO PREPARE STATEMENTS AND DELIVER TH E SAME WITHIN PRESCRIBED TIME BEFORE THE PRESCRIBED AUTHORITY BUT THE POWER TO COLLECT THE FEES BY THE PRESCRIBED AUTHORITY VESTED IN SUCH AUT HORITY ONLY BY WAY OF SUBSTITUTION OF CLAUSE (C) TO SECTION 200A(1) OF TH E ACT BY THE FINANCE ACT 2015 W.E.F. 01.06.2015. PRIOR TO SAID SUBSTATION THE ASSESSING OFFICER HAD NO AUTHORITY TO CHARGE THE FEES UNDER SECTION 234 E OF THE ACT WHILE ISSUING INTIMATION UNDER SECTION 200A OF THE ACT. BEF ORE EXERCISING THE AUTHORITY OF CHARGING ANY SUM FROM ANY DEDUCTOR OR T HE ASSESSEE THE PRESCRIBED AUTHORITY SHOULD HAVE NECESSARY POWER VESTED IN IT AND BEFORE VESTING OF SUCH POWER NO ORDER CAN BE PASSED BY THE PR ESCRIBED AUTHORITY IN CHARGING OF SUCH FEES UNDER SECTION 234E OF THE ACT WHILE EXERCISING JURISDICTION UNDER SECTION 200A OF THE ACT. THUS IN THE ABSENCE OF ENABLING PROVISIONS UNDER WHICH THE PRESCRIBED AUTHO RITY IS EMPOWERED TO CHARGE THE FEES THE ASSESSING OFFICER WHILE PROCESSING THE RETURNS FILED BY THE DEDUCTOR IN RESPECT OF TAX DEDUCTED AT SOURCE CAN RAISE THE DEMAND ON ACCOUNT OF TAXES IF ANY NOT DEPOSITED AND CHARGE INTEREST. HOWEVER PRIOR TO 01.06.2015 THE ASSESSING OFFICER DOES NOT HAVE THE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCE SSING TDS RETURNS. IN THE ABSENCE OF ENABLING PROVISIONS LEVY OF FEES COU LD NOT BE EFFECTED IN THE COURSE OF INTIMATION ISSUED UNDER SECTION 200A OF T HE ACT PRIOR TO 01.06.2015. 26. THE AMRITSAR BENCH OF TRIBUNAL IN SIBIA HEALTHCA RE (P) LTD. VS. DCIT (2015) 121 DTR 81 (ASR) (TRIB) HAD HELD THAT T HE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E OF THE ACT WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A OF THE ACT. SUCH A LEVY COULD NOT BE EFFECTED IN T HE COURSE OF INTIMATION UNDER SECTION 200A OF THE ACT AND IN THE ABSENCE OF A NY OTHER PROVISIONS ENABLING THE DEMAND IN RESPECT OF THIS LEVY HAVING BE EN POINTED OUT NO SUCH LEVY COULD BE EFFECTED. THE SAID PROPOSITION HAS BEEN APPLIED IN VARIOUS DECISIONS OF DIFFERENT BENCHES OF TRIBUNAL. RE FERENCE WAS MADE TO THE DECISIONS OF CHENNAI BENCH OF TRIBUNAL IN G. I NDIRANI VS. DCIT (SUPRA) AHMEDABAD BENCH OF TRIBUNAL IN M/S. GLOBE EC OLOGISTICS LTD. VS. DCIT IN ITA NOS.2689-2691/AHD/2015 ITA NO.2692/AHD/ 2015 RELATING TO ASSESSMENT YEAR 2014-15 ITA NO.2693/AHD/2015 RELAT ING TO ASSESSMENT YEAR 2013-14 AND ITA NOS.2694-2695/AHD/2014 RELATING TO ASSESSMENT YEAR 2013-14 VIDE CONSOLIDATED ORDER DATED 2 6.11.2015 AND CHANDIGARH BENCH OF TRIBUNAL IN M/S. KHANNA WATCHES L TD. VS. DCIT IN ITA NOS.731 TO 735/CHD/2015 RELATING TO ASSESSMENT YEAR S 2014-15 & 2013-14 ORDER DATED 29.10.2015. 11 27. WHILE DECIDING THE PRESENT BUNCH OF APPEALS THE REVENUE HAD PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONB LE BOMBAY HIGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) WHER EIN THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT WA S CHALLENGED. THE HONBLE HIGH COURT NOTED THE FACT THAT WHERE THE DE DUCTOR WAS REQUIRED TO FURNISH PERIODICAL QUARTERLY STATEMENTS CONTAINING THE DETAILS OF DEDUCTION OF TAX MADE DURING THE QUARTER BY THE PR ESCRIBED DUE DATE AND THE DELAY IN FURNISHING SUCH TDS RETURNS WOULD HAVE CA SCADING EFFECT. IT WAS FURTHER OBSERVED BY THE HONBLE HIGH COURT THAT U NDER THE INCOME- TAX ACT WHERE THERE IS AN OBLIGATION ON THE INCOME -TAX DEPARTMENT TO PROCESS THE INCOME-TAX RETURNS WITHIN SPECIFIED PERIOD FROM THE DATE OF FILING THE RETURNS COULD NOT BE ACCURATELY PROCESSED OF SUCH PERSON ON WHOSE BEHALF TAX HAS BEEN DEDUCTED I.E. DEDUCTEE UNT IL INFORMATION OF SUCH DEDUCTIONS IS FURNISHED BY THE DEDUCTOR WITHIN THE PRESCRIBED TIME. SINCE THE SUBSTANTIAL NUMBER OF DEDUCTORS WERE NOT FIL ING THEIR TDS RETURNS / STATEMENTS WITHIN PRESCRIBED TIME FRAME THEN IT LEAD TO AN ADDITIONAL WORK BURDEN UPON THE DEPARTMENT DUE TO T HE FAULT OF THE DEDUCTOR AND IN THIS LIGHT AND TO COMPENSATE FOR ADDI TIONAL WORK BURDEN FORCED UPON THE DEPARTMENT FEES WAS SOUGHT TO BE LEVI ED UNDER SECTION 234E OF THE ACT. THE HONBLE HIGH COURT HELD THAT LOOKING AT THIS FROM THIS PERSPECTIVE SECTION 234E OF THE ACT WAS NOT PUNIT IVE IN NATURE BUT A FEE WHICH WAS A FIXED CHARGE FOR THE EXTRA SERVICE WH ICH THE DEPARTMENT HAD TO PROVIDE DUE TO THE LATE FILING OF TDS STATEME NTS. IT WAS FURTHER HELD BY THE HONBLE HIGH COURT THAT LATE FILING OF TDS R ETURNS / STATEMENTS WAS REGULARIZED BY PAYMENT OF FEES AS SET OUT IN SECTION 23 4E OF THE ACT. THEREFORE THE FINDINGS OF HONBLE HIGH COURT WERE T HUS THAT THE FEES SOUGHT TO BE LEVIED UNDER SECTION 234E OF THE ACT WAS NOT IN THE GUISE OF TAX SOUGHT TO BE LEVIED ON THE DEDUCTOR. THE PROVISI ONS OF SECTION 234E OF THE ACT WERE HELD TO BE NOT ONEROUS ON THE GROUND TH AT SECTION DOES NOT EMPOWER THE ASSESSING OFFICER TO CONDONE THE DELAY IN L ATE FILING THE INCOME TAX RETURNS OR THAT NO APPEAL IS PROVIDED FROM ARBITRARY ORDER PASSED UNDER SECTION 234E OF THE ACT. THE HONBLE HIG H COURT HELD THAT THE RIGHT TO APPEAL WAS NOT A MATTER OF RIGHT BUT WA S CREATURE OF STATUTE AND IF THE LEGISLATURE DEEMS FIT NOT TO PROVIDE REMED Y OF APPEAL SO BE IT. THE HONBLE HIGH COURT FURTHER HELD THAT A PERSON CA N ALWAYS APPROACH THE COURT IN EXTRAORDINARY EQUITABLE JURISDICTION UN DER ARTICLE 226/227 OF THE CONSTITUTION AS THE CASE MAY BE. THE HONBLE HIG H COURT THEREFORE OBSERVED THAT SIMPLY BECAUSE NO REMEDY OF APPEAL WAS PR OVIDED FOR THE PROVISIONS OF SECTION 234E OF THE ACT THE SAME CANNOT BE SAID TO BE ONEROUS AND SECTION 234E OF THE ACT WAS HELD TO BE CON STITUTIONALLY VALID. THE CONSTITUTIONAL VALIDITY OF PROVISIONS OF SECTION 23 4E OF THE ACT HAS ALSO BEEN UPHELD BY THE HONBLE RAJASTHAN HIGH COURT IN M/S. DUNDLOD SHIKSHAN SANSTHAN & ANR. VS. UNION OF INDIA AND ORS (SU PRA). 28. IN VIEW OF THE ABOVE SAID RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT THE CASE OF THE LEARNED CIT-DR BEFORE U S WAS THAT THERE IS NO MERIT IN THE PRESENT SET OF APPEALS FILED BY THE ASSESSEE AS THE HONBLE HIGH COURT HAS LAID DOWN THAT NO APPEAL IS PROVIDED F ROM AN ORDER PASSED UNDER SECTION 234E OF THE ACT AND THE SAME MERITS TO B E DISMISSED AT THE OUTSET. IN THIS REGARD HE HAS RAISED TWO ISSUES THAT (A ) THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE AND ALSO (B) THERE IS NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT BEFORE INSERTION OF CLA USE (C) TO SECTION 200A(1) OF THE ACT BY THE FINANCE ACT 2015 W.E.F. 01.06.2015. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON TH E OTHER HAND DREW OUR ATTENTION TO THE MEMORANDUM TO THE FINANCE BILL 2015 WHILE INTRODUCING THE SAID CLAUSE (C) TO SECTION 200A(1) OF THE ACT. THE FINANCE BILL TOOK NOTE OF THE PROVISIONS OF CHAPTER XVIIB UN DER WHICH THE PERSON 12 DEDUCTING TAX I.E. DEDUCTOR WAS REQUIRED TO FILE QUA RTERLY TAX DEDUCTION AT SOURCE STATEMENT CONTAINING THE DETAILS OF DEDUCTION O F TAX MADE DURING THE QUARTER BY THE PRESCRIBED DUE DATES. SIMILAR RESP ONSIBILITY IS ON A PERSON REQUIRED TO COLLECT TAX OF CERTAIN SPECIFIED R ECEIPTS UNDER SECTION 206C OF THE ACT. IN ORDER TO PROVIDE EFFECTIVE DET ERRENCE AGAINST THE DELAY IN FURNISHING TDS / TCS STATEMENTS THE FINANCE ACT 2 012 INSERTED SECTION 234E OF THE ACT TO PROVIDE FOR LEVY OF FEES O N LATE FURNISHING OF TDS / TCS STATEMENTS. THE MEMO FURTHER TOOK NOTE OF THE FACT THAT THE FINANCE (NO.2) ACT 2009 INSERTED SECTION 200A IN THE ACT WHICH PROVIDED FOR FURNISHING OF TDS STATEMENTS FOR DETERMIN ING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR. IT FURTHER TOOK NOTE THAT HOWEVER AS SECTION 234E OF THE ACT WAS INSERTED AFTER THE INSERT ION OF SECTION 200A IN THE ACT THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT DOES NOT PROVIDE FOR DETERMINATION OF FEES PAYABLE UNDER SECTI ON 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS. IT WAS TH US PROPOSED TO AMEND THE PROVISIONS OF SECTION 200A OF THE ACT SO AS TO ENABLE THE COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF TH E ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS UNDER SECTION 200A OF THE A CT. THE MEMO EXPLAINING THE FINANCE BILL 2015 VERY CATEGORICALL Y HELD THAT CURRENTLY THERE DOES NOT EXIST ANY PROVISION IN THE ACT TO ENABL E THE PROCESSING OF TCS RETURNS AND HENCE A PROPOSAL WAS MADE TO INSERT A PROVISION IN THIS REGARD AND ALSO THE POST PROVISION SHALL INCORPORATE TH E MECHANISM FOR COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT. THE FINANCE BILL FURTHER REFERS TO THE EXISTING PROVISIONS OF THE A CT I.E. AFTER PROCESSING OF TDS STATEMENT INTIMATION IS GENERATED SPECIFYING THE AMOUNT PAYABLE OR REFUNDABLE. THIS INTIMATION GENERATED AFTER PRO CESSING OF TDS STATEMENT IS (I) SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE ACT; (II) APPEALABLE UNDER SECTION 246A OF THE ACT; AND (III) DEEMED AS NOTICE OF PAYMENT UNDER SECTION 156 OF THE ACT. THE FINANCE B ILL FURTHER PROVIDED THAT INTIMATION GENERATED AFTER THE PROPOSED PROCESSI NG OF TCS STATEMENT SHALL BE AT PAR WITH THE INTIMATION GENERATED AFTER PROCESSING OF TDS STATEMENT AND ALSO PROVIDED THAT FAILURE TO PAY TAX SP ECIFIED IN THE INTIMATION SHALL ATTRACT LEVY OF INTEREST AS PER PROVI SIONS OF SECTION 220(2) OF THE ACT. FURTHER AMENDMENTS WERE ALSO MADE IN RE SPECT OF THE SCHEME OF PAYMENT OF TDS / TCS BY THE GOVERNMENT DEDUCTOR / COLLECTOR WHICH ARE NOT RELEVANT FOR DECIDING THE ISSUE IN THE PRESENT APPEAL AND HENCE THE SAME ARE NOT BEING REFERRED TO. THE FINANCE BIL L FURTHER PROVIDED THAT THE AMENDMENT WOULD TAKE EFFECT FROM 01.06.2015. 29. THE PERUSAL OF MEMO EXPLAINING THE PROVISION RELA TING TO INSERTION OF CLAUSE (C) TO SECTION 200A OF THE ACT CLARIFIES THE INTENTION OF LEGISLATURE IN INSERTING THE SAID PROVISION. THE PROVI SIONS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT 20 12 UNDER WHICH THE PROVISION WAS MADE FOR LEVY OF FEES FOR LATE FURNISHING TDS / TCS STATEMENTS. BEFORE INSERTION OF SECTION 234E OF THE A CT THE FINANCE (NO.2) ACT 2009 HAD INSERTED SECTION 200A IN THE ACT UNDER THE SAID SECTION MECHANISM WAS PROVIDED FOR PROCESSING OF TDS ST ATEMENTS FOR DETERMINING THE AMOUNT PAYABLE OR REFUNDABLE TO THE DEDUCTOR UNDER WHICH THE PROVISION WAS ALSO MADE FOR CHARGING OF INTE REST. HOWEVER SINCE THE PROVISIONS OF SECTION 234E OF THE ACT WERE NO T ON STATUTE WHEN THE FINANCE (NO.2) ACT 2009 WAS PASSED NO PROVISION W AS MADE FOR DETERMINING THE FEES PAYABLE UNDER SECTION 234E OF TH E ACT AT THE TIME OF PROCESSING THE TDS STATEMENTS. SO WHEN SECTION 234E OF THE ACT WAS INTRODUCED IT PROVIDED THAT THE PERSON WAS RESPONSIBL E FOR FURNISHING THE TDS RETURNS / STATEMENTS WITHIN STIPULATED PERIOD AND I N DEFAULT FEES WOULD BE CHARGED ON SUCH PERSON. THE SAID SECTION ITSE LF PROVIDED THAT FEES SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTED AT SO URCE OR COLLECTED AT SOURCE. IT WAS FURTHER PROVIDED THAT THE PERSON RESPON SIBLE FOR 13 FURNISHING THE STATEMENTS SHALL PAY THE SAID AMOUNT WHIL E FURNISHING THE STATEMENTS UNDER SECTION 200(3) OF THE ACT. HOWEVER POWER ENABLING THE ASSESSING OFFICER TO CHARGE / LEVY THE FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RETURNS / STATEMENTS FILED BY A PERSON DID NOT EXIST WHEN SECTION 234E OF THE ACT WAS INSERTED BY THE FINANCE ACT 2012. THE POWER TO CHARGE FEES UNDER THE PROVISIONS OF SECTI ON 234E OF THE ACT WHILE PROCESSING THE TDS STATEMENTS WAS DWELLED UPON B Y THE LEGISLATURE BY WAY OF INSERTION OF CLAUSE (C) TO SECTIO N 200A(1) OF THE ACT BY THE FINANCE ACT 2015 W.E.F. 01.06.2015. ACCORD INGLY WE HOLD THAT WHERE THE ASSESSING OFFICER HAS PROCESSED THE TDS STATEMENT S FILED BY THE DEDUCTOR WHICH ADMITTEDLY WERE FILED BELATEDL Y BUT BEFORE INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01 .06.2015 THEN IN SUCH CASES THE ASSESSING OFFICER IS NOT EMPOWERED TO CHARGE FE ES UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE TDS RETUR NS FILED BY THE DEDUCTOR. 30. THE HONBLE BOMBAY HIGH COURT IN RASHMIKANT KUND ALIA VS. UNION OF INDIA (SUPRA) HAS UPHELD THE CONSTITUTIONAL VALIDIT Y OF SAID SECTION INTRODUCED BY THE FINANCE ACT 2015 W.E.F. 01.06.20 15 BUT WAS NOT ABREAST OF THE APPLICABILITY OF THE SAID SECTION 234E OF THE ACT BY THE ASSESSING OFFICER WHILE PROCESSING TDS STATEMENT FILED BY THE DEDUCTOR PRIOR TO 01.06.2015. IN SUCH SCENARIO WE FIND NO ME RIT IN THE PLEA OF LEARNED CIT-DR THAT THE HONBLE BOMBAY HIGH COURT I N RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) HAS LAID DOWN THE PROPOSITION THAT FEES UNDER SECTION 234E OF THE ACT IS CHARGEABLE IN TH E CASE OF PRESENT SET OF APPEALS WHERE THE ASSESSING OFFICER HAD ISSUED THE INT IMATION UNDER SECTION 200A OF THE ACT PRIOR TO 01.06.2015. 31. ANOTHER ASPECT OF THE ISSUE IS WHETHER THE AMENDMEN T BROUGHT IN BY THE FINANCE ACT 2015 W.E.F. 01.06.2015 BY WAY O F INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT IS CLARIFICATORY OR IS PROSPECTIVE IN NATURE AND IS NOT APPLICABLE TO THE PENDING ASSESSMENTS. UNDOU BTEDLY THE PROVISIONS OF SECTION 234E OF THE ACT WERE INSERTED BY THE FINANCE ACT 2012 UNDER WHICH THE LIABILITY WAS IMPOSED UPON THE DEDUCTOR IN SUCH CASES WHERE TDS STATEMENTS / RETURNS WERE FILED BELATEDL Y TO PAY THE FEES AS PER SAID SECTION. HOWEVER IN CASES WHERE THE ASSESSEE HAS FAILED TO DEPOSIT THE SAID FEES THEN IN ORDER TO ENABLE THE ASSE SSING OFFICER TO COLLECT THE SAID FEES CHARGEABLE UNDER SECTION 234E OF THE ACT IT IS INCUMBENT UPON THE LEGISLATURE TO PROVIDE MECHANISM F OR THE ASSESSING OFFICER TO CHARGE AND COLLECT SUCH FEES. IN THE ABSEN CE OF ENABLING PROVISIONS THE ASSESSING OFFICER WHILE PROCESSING THE TDS STATEMENTS EVEN IF THE SAID STATEMENTS ARE BELATED IS NOT EMPOWER ED TO CHARGE THE FEES UNDER SECTION 234E OF THE ACT. THE AMENDMENT WA S BROUGHT IN BY THE FINANCE ACT 2015 W.E.F. 01.06.2015 AND SUCH AN AMENDMENT WHERE EMPOWERMENT IS GIVEN TO THE ASSESSING OFFICER TO LEVY OR CHARGE THE FEES CANNOT BE SAID TO BE CLARIFICATORY IN NATURE AND HEN CE APPLICABLE FOR PENDING ASSESSMENTS. 32. THE HONBLE SUPREME COURT IN CIT VS. VATIKA TOWN SHIP PVT. LTD. (SUPRA) HAS EXPLAINED THE GENERAL PRINCIPLE CONCERNIN G RETROSPECTIVITY AND HAVE HELD THAT OF THE VARIOUS RULES GUIDING HOW A LEGISLATION HAS TO BE INTERPRETED ONE ESTABLISHED RULE IS THAT UNLESS CO NTRARY INTENTION APPEARS A LEGISLATION IS PRESUMED NOT TO BE INTENDED TO HAVE A RETROSPECTIVE OPERATION. IDEA BEHIND THE RULE IS THAT CURRENT LAW SHOULD GOV ERN CURRENT ACTIVITIES. THE MEMO EXPLAINING THE FINANCE BILL 2015 VERY CLE ARLY ALSO RECOGNIZES THAT AND REFERS TO THE CURRENT PROVISIONS OF SUB-SECTION (3) TO SECTION 200 OF THE ACT UNDER WHICH THE DEDUCTOR IS TO FURNISH TD S STATEMENTS. HOWEVER AS SECTION 234E OF THE ACT WAS INSERTED AFTER INSERTION OF 14 SECTION 200A IN THE ACT THE EXISTING PROVISIONS OF SEC TION 200A OF THE ACT DID NOT PROVIDE FOR DETERMINATION OF FEES PAYABLE UN DER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS. I N THIS REGARD IT WAS THUS PROPOSED TO AMEND THE PROVISIONS OF SECTION 200A O F THE ACT SO AS TO ENABLE THE COMPUTATION OF FEES PAYABLE UNDER SECTION 234E OF THE ACT AT THE TIME OF PROCESSING OF TDS STATEMENTS UNDER SECTION 2 00A OF THE ACT. IN OTHER WORDS THE ASSESSING OFFICER IS EMPOWERED TO CHA RGE FEES PAYABLE UNDER SECTION 234E OF THE ACT IN THE INTIMAT ION ISSUED AFTER INSERTION OF CLAUSE (C) TO SECTION 200A(1) OF THE ACT W.E.F. 01.06.2015. THE LEGISLATURE ITSELF RECOGNIZED THAT UNDER THE EXISTING PROVISIONS OF SECTION 200A OF THE ACT I.E. PRIOR TO 01.06.2015 THE ASSESSING OFFICER AT THE TIME OF PROCESSING THE TDS STATEMENTS DID NOT HAVE POWER TO CHARGE FEES UNDER SECTION 234E OF THE ACT AND IN ORDER TO COVER UP THAT THE AMENDMENT WAS MADE BY WAY OF INSERTION OF CLAUSE (C) T O SECTION 200A OF THE ACT. IN SUCH SCENARIO IT CANNOT BE SAID THAT IN SERTION MADE BY SECTION 200A(1)(C) OF THE ACT IS RETROSPECTIVE IN NATURE WHE RE THE LEGISLATURE WAS AWARE THAT THE FEES COULD BE CHARGED UNDER SECTION 234E OF THE ACT AS PER FINANCE ACT 2012 AND ALSO THE PROVISIONS OF SECTI ON 200A OF THE ACT WERE INSERTED BY FINANCE (NO.2) ACT 2009 UNDER WHI CH THE MACHINERY WAS PROVIDED FOR THE ASSESSING OFFICER TO PROCESS THE TDS STATEMENTS FILED BY THE ASSESSEE. THE INSERTION CATEGORICALLY BEIN G MADE W.E.F. 01.06.2015 LAYS DOWN THAT THE SAID AMENDMENT IS PROSPEC TIVE IN NATURE AND CANNOT BE APPLIED TO PROCESSING OF TDS RETURNS / ST ATEMENTS PRIOR TO 01.06.2015. 33. WE FURTHER FIND THAT IN RECENT JUDGMENT DATED 2 6.08.2016 THE HONBLE KARNATAKA HIGH COURT IN WRIT APPEAL NOS.2663 -2674/2015(T-IT) & ORS IN SRI FATHERAJ SINGHVI & ORS VS. UNION OF INDIA & ORS HAS QUASHED THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT LE VYING THE FEES FOR DELAYED FILING THE TDS STATEMENTS UNDER SECTION 234E O F THE ACT. THE HONBLE HIGH COURT NOTES THAT THE FINANCE ACT 2015 HAD MADE AMENDMENTS TO SECTION 200A OF THE ACT ENABLING THE ASSE SSING OFFICER TO MAKE ADJUSTMENTS WHILE LEVYING FEES UNDER SECTION 234E OF THE ACT WAS APPLICABLE W.E.F. 01.06.2015 AND HAS HELD THAT IT HA S PROSPECTIVE EFFECT. ACCORDINGLY THE HONBLE HIGH COURT HELD THAT INTIMATION RAISING DEMAND PRIOR TO 01.06.2015 UNDER SECTION 200A OF THE ACT L EVYING SECTION 234E OF THE ACT LATE FEES IS NOT VALID. HOWEVER THE HONBLE HIGH COURT KEPT OPEN THE ISSUE ON CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE ACT. WE HAVE ALREADY REFERRED TO THE DECISION OF HONBLE BOMBAY H IGH COURT IN RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) IN THIS REGARD WHEREIN THE CONSTITUTIONAL VALIDITY OF SECTION 234E OF THE AC T HAS BEEN UPHELD. 34. ACCORDINGLY WE HOLD THAT THE AMENDMENT TO SECTI ON 200A(1) OF THE ACT IS PROCEDURAL IN NATURE AND IN VIEW THEREOF THE ASSESSING OFFICER WHILE PROCESSING THE TDS STATEMENTS / RETURNS IN THE PRE SENT SET OF APPEALS FOR THE PERIOD PRIOR TO 01.06.2015 WAS NOT E MPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT. HENCE THE INTIM ATION ISSUED BY THE ASSESSING OFFICER UNDER SECTION 200A OF THE ACT IN ALL T HESE APPEALS DOES NOT STAND AND THE DEMAND RAISED BY WAY OF CHARGING TH E FEES UNDER SECTION 234E OF THE ACT IS NOT VALID AND THE SAME IS DE LETED. 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. 35. BEFORE PARTING WE MAY REFER TO RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE RATIO LAID DOWN BY CHENNAI BE NCH OF TRIBUNAL IN G. INDIRANI VS. DCIT (SUPRA) ON ANOTHER ASPECT WHEREIN I T WAS HELD THAT BEFORE 01.06.2015 WHETHER THE ASSESSING OFFICER HAD AU THORITY TO PASS A 15 SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEES FOR DELAY IN FILING THE TDS STATEMENTS UNDER SECTION 200(3) OF THE ACT; THE TRIBUNAL HELD YES THAT THE ASSESSING AUTHORITY HAD SUCH POWER AN D AFTER 01.06.2015 THE ASSESSING OFFICER WAS WITHIN HIS LIMIT TO LEVY FEES UNDER SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT. IN VIEW OF THE PRESENT SET OF FACTS WHERE THE ASSESSING OFFICER HAD CHARGED FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENTS UNDER SECTION 200A OF THE ACT BEFORE 01.06.2015 THERE IS NO MERIT IN THE RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE SAID PROPOSITION LAID DOWN BY THE CHENN AI BENCH OF TRIBUNAL AND WE DISMISS THE SAME. 36. ANOTHER RELIANCE PLACED UPON BY THE LEARNED CIT -DR WAS IN RESPECT OF AMENDMENT BEING RETROSPECTIVE OR PROSPECTIV E AND RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY HONBLE DELHI H IGH COURT IN CIT VS. NARESH KUMAR (SUPRA). HOWEVER IN VIEW OF OUR DECISIO N IN THE PARAS HEREINABOVE WHERE POWER IS BEING ENSHRINED UPON THE ASSESSING OFFICER TO LEVY OR CHARGE WHILE PROCESSING THE TDS RETURNS W.E .F. 01.06.2015 SUCH PROVISION CANNOT HAVE RETROSPECTIVE EFFECT AS IT WOULD BE DETRIMENTAL TO THE CASE OF TAX PAYER. THE HONBLE DELHI HIGH COURT WAS CONSIDERING THE APPLICATION OF AMENDMENT TO SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT 2010 UNDER WHICH CERTAIN RELAXATIONS WERE GIVE N TO THE APPLICATION OF SAID SECTION AND IT WAS HELD THAT THE SAME APPLIES RE TROSPECTIVELY TO EARLIER YEARS. HOWEVER IN THE PRESENT SET OF APPEALS THE ISSUE IS AGAINST THE PROVISION UNDER WHICH A NEW ENABLING POWER IS BEI NG GIVEN TO CHARGE FEES UNDER SECTION 234E OF THE ACT WHILE PROCESSING TDS RETURNS / STATEMENTS AND SUCH POWER IS TO BE APPLIED PROSPECTIVEL Y. IN ANY CASE THE PARLIAMENT ITSELF HAS RECOGNIZED ITS OPERATION TO BE PROSPECTIVE IN NATURE WHILE INTRODUCING CLAUSE (C) TO SECTION 200A(1 ) OF THE ACT AND HENCE CANNOT BE APPLIED RETROSPECTIVELY. SIMILARLY RELIANCE PLACED UPON BY THE LEARNED CIT-DR ON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN GOVINDDAS VS. ITO (SUPRA) IS MISPLACED BECAUSE O F THE DISTINGUISHABLE FACTS AND ISSUES. 37. NOW COMING TO THE CONNECTED ISSUE RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BY WAY OF GRO UND OF APPEAL NO.1 THAT WHETHER ANY APPEAL IS MAINTAINABLE AGAINST THE INTIMATION ISSUED UNDER SECTION 200A OF THE ACT AND / OR ORDER PA SSED UNDER SECTION 154 R.W.S. 200A OF THE ACT BY ASSESSING OFFICER IN CHARG ING THE FEES UNDER SECTION 234E OF THE ACT. BOTH THE LEARNED AUTHORIZE D REPRESENTATIVES HAVE RAISED VARIED ARGUMENTS IN RESPECT OF SAID ISSUE AND THE LEARNED CIT- DR HAS REFERRED TO THE ORDER OF CIT(A) WHO HAD HELD THAT NO APPEAL IS MAINTAINABLE AGAINST THE ORDER OF ASSESSING OFFICER PASSED WHILE PROCESSING THE TDS RETURNS / STATEMENTS AND CHARGING OF FEES UNDER SECTION 234E OF THE ACT. WITHOUT GOING INTO VARIOUS ASPECTS OF THE ISSUE WE MAKE REFERENCE TO THE MEMORANDUM EXPLAINING THE FINANCE BILL 2015 UNDER WHICH THE HEADING WAS RATIONALIZATION OF PROVI SIONS RELATING TO TAX DEDUCTION AT SOURCE (TDS) AND TAX COLLECTION AT SOU RCE (TCS). THE SAID MEMORANDUM CATEGORICALLY RECOGNIZED THAT UNDER THE EXISTING PROVISIONS OF THE ACT AFTER PROCESSING OF TDS STATEMENTS AN INTI MATION IS GENERATED SPECIFYING THE AMOUNT PAYABLE OR REFUNDABLE. IT WAS FURTHER NOTED THAT THIS INTIMATION GENERATED AFTER PROCESSING TDS STATEMEN T IS (I) SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE ACT; (II) APP EALABLE UNDER SECTION 246A OF THE ACT; AND (III) DEEMED AS NOTICE OF PAYME NT UNDER SECTION 156 OF THE ACT. UNDER THE AMENDMENT SIMILAR POSITION WA S GIVEN TO THE PROCESSING OF TCS STATEMENTS. IN OTHER WORDS THE LEGIS LATURE RECOGNIZES THAT A DEDUCTOR WHO HAS FILED HIS STATEMENT OF TAX DED UCTED AT SOURCE WHICH IN TURN HAS BEEN PROCESSED BY THE ASSESSING OFFICE R AND INTIMATION 16 IS GENERATED UNDER WHICH IF ANY AMOUNT IS FOUND TO B E PAYABLE THEN SUCH INTIMATION GENERATED AFTER PROCESSING OF TDS RETURNS I S SUBJECT TO RECTIFICATION UNDER SECTION 154 OF THE ACT AND / OR IS ALSO APPEALABLE UNDER SECTION 246A OF THE ACT SINCE THE DEMAND ISSUED BY THE ASSESSING OFFICER IS DEEMED TO BE A NOTICE OF PAYMENT UNDER SEC TION 156 OF THE ACT. SINCE THE INTIMATION IN QUESTION ISSUED BY THE ASSESSING O FFICER WAS APPEALABLE ORDER UNDER SECTION 246A(1)(A) OF THE ACT THEREFORE THE CIT(A) SHOULD HAVE EXAMINED THE LEGALITY OF ADJUSTMEN T MADE UNDER INTIMATION ISSUED UNDER SECTION 200A OF THE ACT. THE CIT(A) HAS REJECTED THE PRESENT SET OF APPEALS ON THE SURMISE THAT FIRST OF A LL NO APPEAL IS PROVIDED AGAINST THE INTIMATION ISSUED UNDER SECTION 20 0A OF THE ACT. FURTHER THE CIT(A) HAS ALSO DECIDED THE ISSUE ON MERI TS AND THE ASSESSEE IS IN APPEAL BEFORE US ON BOTH THESE GROUNDS. VIS--VI S THE FIRST ISSUE OF MAINTAINABILITY OF APPEAL AGAINST THE INTIMATION ISSUE D UNDER SECTION 200A OF THE ACT WE HOLD THAT SUCH INTIMATION ISSUED BY THE ASSESSING OFFICER AFTER PROCESSING THE TDS RETURNS IS APPEALABLE. THE DEMAND RAISED BY WAY OF CHARGING OF FEES UNDER SECTION 234E O F THE ACT IS UNDER SECTION 156 OF THE ACT AND ANY DEMAND RAISED UNDER SEC TION 156 OF THE ACT IS APPEALABLE UNDER SECTION 246A(1)(A) AND (C) OF THE ACT. ACCORDINGLY WE REVERSE THE FINDINGS OF CIT(A) IN TH IS REGARD. WE FIND SUPPORT FROM THE SIMILAR PROPOSITION BEING LAID DOWN B Y MUMBAI BENCH OF TRIBUNAL IN BUNCH OF CASES WITH LEAD ORDER IN M/S. KASH REALTORS PVT. LTD. VS. ITO IN ITA NO.4199/M/2015 RELATING TO ASSESSME NT YEAR 2013- 14 CONSOLIDATED ORDER DATED 27.07.2016 WHICH HAD A LSO DECIDED THE ISSUE OF CHARGING OF FEES UNDER SECTION 234E OF THE ACT IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISIONS OF OTHER BENCHES OF TRIBU NAL. ONCE INTIMATION ISSUED UNDER SECTION 200A(1) OF THE ACT IS A PPEALABLE ORDER BEFORE THE CIT(A) UNDER SECTION 246A(1)(A) OF THE AC T THEN SUCH APPEALABLE ORDER PASSED BY THE CIT(A) UNDER SECTION 25 0 OF THE ACT IS FURTHER APPEALABLE BEFORE THE TRIBUNAL UNDER SECTION 253 OF THE ACT. HENCE WE ADMIT THE PRESENT APPEALS FILED BY THE ASSESSEE EVEN ON THIS PRELIMINARY ISSUE. WE HAVE ALREADY ADJUDICATED THE I SSUE OF CHARGING FEES UNDER SECTION 234E OF THE ACT BY THE ASSESSING OFFICER W HILE PROCESSING RETURNS / STATEMENTS IN THE PARAS HEREINABOVE AND IN VI EW THEREOF WE HOLD THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO CHAR GE THE FEES UNDER SECTION 234E OF THE ACT BY WAY OF INTIMATION ISSUED U NDER SECTION 200A OF THE ACT IN RESPECT OF DEFAULTS BEFORE 01.06.2015 WE ALLOW THE CLAIM OF ASSESSEE ON BOTH THE ASPECTS. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS ALLOWED. 17. FOLLOWING THE DECISION OF THE TRIBUNAL CITED (SUPRA) T HE APPEALS FILED BY THE RESPECTIVE ASSESSEES ARE ALLOWED IN TH E SAME TERMS. 18. BALANCE ORDER UPTO PARA 15 WILL REMAIN THE SAME. 17 19. THIS CORRIGENDUM IS BEING ISSUED TO CORRECT THE MISTA KES IN THE ORDER AND THERE IS NO CHANGE IN THE ULTIMATE CONCLUSION. SD/- SD/- (VIKAS AWASTHY) (R.K. PANDA) # / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE ; DATED : 30 TH SEPTEMBER 2016 . SATISH & '#)! *! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. CIT(A) - 10 PUNE / CONCERNED CIT(A) 4. 5. 6. CIT (TDS) PUNE / CONCERNED CIT / DR ITAT B PUNE; ' / GUARD FILE. / BY ORDER //TRUE COPY// '( / SR. PRIVATE SECRETARY / ITAT PUNE