IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM ITA No. 722 & 723/JP/2016 Assessment Year : 2013-14 / Q-3 & 4. M/s. Sandeep Jhanwar Advisory Services cuke TDS CPC, Pvt. Ltd., B-144A, 1st Floor, Mangal Marg, Vs. Aaykar Bhawan, Bapu Nagar, Jaipur. Ghaziabad. PAN /TAN No. JPRS11268F Appellant Respondent Assessee by : Shri Sandeep Jhanwar (C.A) Revenue by : Shri Rajendra Jha (JCIT) Date of Hearing : 04.10.2016. Date of Pronouncement : 18/10/2016. ORDER PER SHRI KUL BHARAT, JM. These are two appeals by assessee directed against two separate order of ld. CIT (Appeals)-III, Jaipur dated 26.05.2016 pertaining to assessment year 2013-14. assessee has raised following grounds of appeal :- ITA No. 722/JP/2016 : 1. Under facts and circumstances of case, ld. CIT (A) erred in not holding intimation issued u/s 200A, raising demand of Rs. 4,200/- by applying provision section 234E, as bad in law. 2. Under facts and circumstances of case, ld. CIT (A) erred in confirming levy of fees u/s 234E of Rs. 4,200/-. However, same is not justified and deserves to be withdrawn. 2 ITA Nos. 722 & 723/JP/2016 Sandeep Jhanwar Advisory Services P Ltd. ITA No. 723/JP/2016 : 1. Under facts and circumstances of case, ld. CIT (A) erred in not holding intimation issued u/s 200A, raising demand of Rs. 16,850/- by applying provision section 234E, as bad in law. 2. Under facts and circumstances of case, ld. CIT (A) erred in confirming levy of fees u/s 234E of Rs. 16,850/-. However, same is not justified and deserves to be withdrawn. grounds involved in these appeals are common, therefore, both these appeals are taken up together and are being disposed off by this consolidated order, for sake of convenience. 2. Briefly stated facts of case are that in intimation under section 200A dated 25.12.2013 fees of Rs. 4,200/- under section 234E was levied for delay of 21 days in filing quarterly statement of TDS in Form 26Q for third quarter of financial year 2012-13. Against this intimation, applicant filed appeal before ld. CIT (A), who relying on decision of Hon ble Rajasthan High Court in case of M/s. Dundlod Shikshan Sansthan and Others dated 28.07.2015 upheld levy of fees under section 234E of Act for delay in filing TDS return. 3. ld. Counsel for assessee argued no fees could be levied u/s 234E while issuing intimation u/s 200A before 01.06.2015 as power to charge/collect fees under section 234E while issuing intimation u/s 200A was vested with revenue only on substitution of clause (c) to section 200A vide Finance Act, 2015 w.e.f. 01.06.2015. 3.1. ld. Counsel further submitted that once any provision of Act has been made applicable from particular date, then requirement of statute is to 3 ITA Nos. 722 & 723/JP/2016 Sandeep Jhanwar Advisory Services P Ltd. apply said provisions from that specific date. Hence, in TDS statements filed prior to 01.06.2015, late fees u/s 234E cannot be levied. Reliance in this regard is placed on following judicial pronouncements :- Shri Fatheraj Singhvi & Ors (Writ Appeal No. 2663-2674/2015(T-IT) 73 taxmann.com 252 (Kar.HC) Gajanan Constructions vs. DCIT (73 taxmann.com 380)(ITAT Pune) Smt. G. Indhirani vs. DCIT (60 taxmann.com 312)(ITAT Chennai) Maharashtra Cricket Association vs. DCIT (74 taxmann.com 6)(ITAT Pune) Sibia Healthcare Pvt. Ltd. vs. DCIT (61 taxmann.com 70) (ITAT Amritsar) Dhanlaxmi Developers vs. DCIT (ITA No. 2888 to 2891/Ahd/2015)(ITAT Ahmedabad) He further argued that Hon ble Supreme Court in case of CIT vs. Vatika Township Pvt. Ltd. (49 taxmann.com 249) has discussed in detail general principle of concerning retrospectively and held that unless contrary intention appears, legislation is presumed not to have retrospective operation. Keeping in view principles laid down in above judgment, it can be said that section 200A was amended to levy fees u/s 234E prospectively w.e.f. 01.06.2015 as legislation in this regard was clearly worded and no contrary interpretation can be made. said view is also upheld in case laws cited supra. 3.2. In respect of decision of Hon ble Rajasthan High Court in case of M/s. Dundlod Shikshan Sansthan and Others, ld. Counsel contended that Hon ble Court has upheld constitutional validity of levy of fees under sec. 234E of Act 4 ITA Nos. 722 & 723/JP/2016 Sandeep Jhanwar Advisory Services P Ltd. and has not discussed levy of fees under section 234E in TDS statement processed under sec. 200A of Act before 1.6.2015. Therefore finding that we do not find that prior to this amendment imposition of fees was illegal cannot be taken as base for levy of fees under sec. 234E on statements processed under section 200A particularly when Karnataka High Court in its decision dated 26.08.2016 has categorically held that No demand for fees u/s 234 E can be made in intimation issued for TDS deducted 200A before 1.6.2015. 3.4. On contrary, ld. D/R supported orders of authorities below. 3.5. We have heard rival contentions, perused material available on record and gone through orders of authorities below. We have also gone through case laws relied upon by ld. Counsel. We find merit into contention of ld. Counsel that he jurisdictional High Court has decided validity of section 234E, but has not decide issue of power of AO for levy of tax under section 234E in judgment rendered in case of M/s. Dundlod Shikshan Sansthan and Others (supra) as relied by ld. CIT (A). We have considered recent decision of Hon ble Karnataka High Court in case of Shri Fatheraj Singhvi & Ors (supra) wherein issue of levy of fees u/s 234E on statements processed u/s 200A before 01.06.2015 has been categorically discussed by Hon ble High Court and in para 24 of said order it was held that no demand for fee u/s 234E can be made in intimation issued for TDS deducted u/s 200A before 01.06.2015 . We have also gone through judgment of Hon ble Supreme Court in case of CIT vs. Vatika Township Pvt. Ltd. (supra) wherein Hon ble Apex Court has discussed in detail general principle of concerning retrospectively and held that unless contrary intention appears, legislation is presumed not to have retrospective operation. Respectfully 5 ITA Nos. 722 & 723/JP/2016 Sandeep Jhanwar Advisory Services P Ltd. following above judgments of Hon ble Supreme Court and Hon ble Karnataka High Court, we set aside order of ld. CIT (A) and direct AO to drop demand raised of Rs. 4,200/- u/s 234E on statements processed u/s 200A before 01.06.2015. Thus grounds raised by assessee are allowed. ITA NO. 723/JP/2016 : 4. issue raised in this appeal is exactly identical to ITA No. 722/JP/2016. Since there is no change in facts and circumstances in present appeal, therefore, following decision arrived at in ITA No. 722/JP/2016, we set aside order of ld. CIT (A) and allow this appeal of assessee also. 5. In result, appeals of assessee are allowed. Order pronounced in open court on 18/10/2016. Sd/- Sd/- (VIKRAM SINGH YADAV) ( KUL BHARAT ) Accountant Member Judicial Member Jaipur Dated:- 18/10/2016. Copy of order forwarded to: s 1. Appellant- Sandeep Jhanwar Advisory Service Pvt. Ltd., Jaipur. 2. Respondent- TDS CPC, Aaykar Bhawan, Ghaziabad. 3. CIT, 4. CIT (A) 5. DR, ITAT, Jaipur 6. Guard File (ITA No. 722 & 723/JP/2016) By order, Assistant. Registrar 6 ITA Nos. 722 & 723/JP/2016 Sandeep Jhanwar Advisory Services P Ltd. M/s. Sandeep Jhanwar Advisory Services Pvt. Ltd. v. TDS CPC, Ghaziabad