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2019 (7) TMI 290 - ITAT MUMBAILevy of fees u/s 234E - delay in filing TDS statement in Form 26QB - applicabilty of 194IA - allotment letter cannot be treated as transfer of immovable property - imposing fee u/s 234E has become appealable before CIT(A) w.e.f. 1st June 2015 - applicability of section 234E on TDS statements or to a single TDS statement - HELD THAT:- It is patent and obvious that the assessee and the seller of the flats have treated the transaction of sale of flats as a transaction coming within the purview of section 194IA. In any case of the matter, the deductee has not expressed any reservation with regard to the applicability of section 194IA to the subject transaction. Therefore, the assessee being a deductor cannot plead inapplicability of the aforesaid provision. In fact, in our view, the contention of inapplicability of section 194IA is redundant and is not available to be taken by the assessee. Once the assessee has proceeded to deduct tax at source u/s 194IA of the Act, all legal consequences arising in pursuance thereto would automatically follow. Validity of Section 234E -The Court in Rashmikant Kundalia & Anr. v/s Union of India, 2015 (2) TMI 412 - BOMBAY HIGH COURT] has held, the fee charged under section 234E is nothing but a privilege and a special service to the deductor allowing him to file TDS returns / statements beyond the time prescribed by the Act and the Rules. The Court has held that on payment of the fee under section 234E, the deductor is allowed to file the TDS returns/statements beyond the prescribed time so that it can be regularized. Applicability of Section 234E on filing of Form no.26QB - No doubt, the provision contained u/s 234E of the Act makes it clear that it will be applicable if the deductor fails to deliver the TDS statement within the time prescribed in u/s 200(3). Whereas, section 200(3) makes it clear that furnishing of TDS statement in the prescribed form, manner and time applies to all TDS provisions including section 194IA contained under Chapter–XVII. Therefore, assessee’s claim that since the challan–cum–statement is generated on a single date, therefore, it will not come within the purview of section 200(3) of the Act, is unacceptable. Thus, we are of the view that the TDS statements in Form no.26QB also comes within the ambit of section 200(3). All the transactions relating to purchase of flats should be taken as a single transaction - At this stage, it will be relevant to observe, clause (c) of sub–section (1) of section 200A contemplates that while processing the TDS return, fee u/s 234E shall be computed. Thus, use of word “shall” in the aforesaid provision makes it mandatory on the part of the Assessing Officer to levy fee u/s 234E. Since, the assessee has filed separate TDS statements u/s 200(3) read with rule 26QB, there is no error on the part of the Assessing Officer in computing fee under section 234E of the Act while processing such statements. Appeal against levy of fee u/s 234E - As regards the contention of the learned Authorised Representative that appeal against levy of fee u/s 234E of the Act is maintainable before the learned CIT(A), we find merit in the same. However, it will not make much difference as learned Commissioner (Appeals) has decided the issue on merit. Grounds are dismissed.
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