TMI Blog2015 (12) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Assessee : Shri R.D.Shah For The Revenue : Smt.Smiti Samant, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: The present two appeals are directed at the instance of the assessee against order of the ld.CIT(A)-8 dated 01.5.2015 passed for the Asstt.Year 2013-14. 2. The ld.counsel for the assessee has pointed out that there was a delay of 35 days in filing of appeal before he CIT|(A). The assessee has moved an application for condonation of delay. But the ld.First Appellate authority has dismissed the application by observing that the assessee failed to submit the TDS return in time, and thereafter, did not challenge the order of the DCIT, CPC, TDS in time. It suggests t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on 24.3.2015. The ld.DCIT, CPC, TDS has imposed late filing fee under section 234E of ₹ 10,400/- for the quarter-3 and ₹ 6,600/- for the quarter no.4. The ld.First Appellate Authority has upheld the levy of fees by dismissing the appeal of the assessee being time barred. Since, the ld.First Appellate Authority has not adjudicated the issue on merit, therefore, in normal circumstances, we ought to have set aside the issue to the file of the CIT(A), but along with these two appeals, we have heard six more appeals on identical issues. The issue in dispute is squarely covered by the decision of the ITAT, Amristar Bench in the case of Sibia Healthcare Pvt. Ltd. VS. DCIT, ITA No,.90/Asr/2015, which has been followed by the ITAT, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not produced before us. However, as admittedly there are no orders from the Hon ble Courts above retraining us from our adjudication on merits in respect of the issues in this appeal, and as, in our humble understanding, this appeal requires adjudication on a very short legal issue, within a narrow compass of material facts, we are proceeding to dispose of this appeal on merits. 5. We may produce, for ready reference, section 234E of the Act, which was inserted by the Finance Act 2012 and was brought into effect from 1st July 2012. This statutory provision is as follows: 234E. Fee for defaults in furnishing statements (1) Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sums deductible under this Chapter shall be computed after making the following adjustments, namely:- (i) any arithmetical error in the statement; or (ii) an incorrect claim, apparent from any information 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 due to, the deductor shall be determined after adjustment of amount 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 and sent to the deductor specifying the sum determined to be payable by, or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the provisions of section 234E; (d) the sum payable by, or the amount of refund due to, the deductor shall be determined after adjustment of the amount computed under clause (b) and clause (c) against any amount paid under section 200 or section 201 or section 234E and any amount paid otherwise by way of tax or interest or fee; (e) an intimation shall be prepared or generated and sent to the deductor specifying the sum determined to be payable by, or the amount of refund due to, him under clause (d); and (f) the amount of refund due to the deductor in pursuance of the determination under clause (d) shall be granted to the deductor. 8. In effect thus, post 1st June 2015, in the course of processing of a TDS sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le adjustments contemplated under section 200A. This intimation is an appealable order under section 246A(a), and, therefore, the CIT(A) ought to have examined legality of the adjustment made under this intimation in the light of the scope of the section 200A. Learned CIT(A) has not done so. He has justified the levy of fees on the basis of the provisions of Section 234E. That is not the issue here. The issue is whether such a levy could be effected in the course of intimation under section 200A. The answer is clearly in negative. No other provision enabling a demand in respect of this levy has been pointed out to us and it is thus an admitted position that in the absence of the enabling provision under section 200A, no such levy could be e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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