TMI Blog2020 (4) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... C.N. Prasad, Hon'ble Judicial Member And Shri M. Balaganesh, Hon'ble Accountant Member For the Assessee : Shri G.C. Lalka For the Department : Shri Kumar Padmapani Bora ORDER PER C.N. PRASAD (JM) 1. This appeal is field by the assessee against the order of Learned Commissioner of Income Tax (Appeals)-59, Mumbai dated 10.07.2018 for the Assessment Year 2013-14 in sustaining the levy of fee u/s. 234E of the Act for default in furnishing quarterly TDS statements and while passing the intimation u/s. 200A of the Act. 2. The Ld. Counsel for the Assessee submits that the DCIT, Centralized Processing Cell (TDS), issued intimation u/s 200A of the Act while processing Form No. 24Q filed by the Assessees for the 2nd, 3rd and 4th quarters of the financial year 2012-14 and while processing Form No.24Q, in the intimations passed u/s 200A, late fee of ₹.57,600/-, ₹.25,540/- and ₹.15,200/- u/s 234E was levied for the delay in filing Form Nos.24Q. The Ld. Counsel submits that whether late fee u/s 234E can be levied prior to amendment to section 200A(1)(c) of the Act by Finance Act, 2015 w.e.f. 1.06.2015 while processing the TDS returns is dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for furnishing the statements shall pay the said amount while furnishing the statements under section 200(3) of the Act. However, power enabling the Assessing Officer to charge I 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 section 234E of the Act while processing the TDS statements, was dwelled upon by the Legislature by way of insertion of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. Accordingly, we hold that where the Assessing Officer has processed the TDS statements filed by the deductor, which admittedly, were filed belatedly 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 fees under section 234E of the Act while processing the TDS returns filed by the deductor. 29. The Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) has upheld the constitutional validity of said section introduced by the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly 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 TDS statements. However, as section 234E of the Act was inserted after insertion of section 200A in the Act, the existing provisions of section 200A of the Act did not provide for determination of fees payable under section 234E of the Act at the time of processing of TDS statements. in this regard. it was thus, proposed to amend the provisions of section 200A of 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 200A of the Act. In other words, the Assessing Officer is empowered to charge fees payable under section 234E of the Act in the intimation 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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. 5. Following this order of the Pune Bench, the Coordinate Bench of the Mumbai Bench in the case of Asian Pipes Profiles Pvt. Ltd. Vs. Assessing Officer, TDS Ward in ITA Nos. 4740 and 4741/Mum/2016 dated 1.3.2017 held as under: - 6.2 Following the above referred decision of the Hon ble ITAT Pune Bench in the case of Gajanan Constructions and others in ITA Nos. 1292 1293/PN/2015 and others dated 23.09.2016, we hold that the amendment to section 200A(1) of the Act is prospective in nature and therefore the AO while processing the TDS statements/ returns in the present three appeals for the period prior to 01.06.20 15 was not empowered to charge fees under section 234E of the Act. Therefore, the intimations issued by the AO under section 200A of the Act in these appeals are unsustainable and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted. In this view of the matter, we hold that the AO is not empowered to charge fees under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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