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2015 (12) TMI 1027 - ITAT AHMEDABAD

2015 (12) TMI 1027 - ITAT AHMEDABAD - TMI - Levy of fee u/s 234E in the order u/s 200A - Held that:- The adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible 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 ha .....

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ng a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 19th February 2014, such a levy could only have been made at best within 31st March 2015. That time has already elapsed and the defect is thus not curable even at this stage. In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees und .....

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r the Appellant : Shri Vinit Moondra, AR For the Respondent : Shri Anil Kumar Bhardwaj, Sr.DR ORDER Per Bench All these appeals of assessee are directed against orders of CIT(A) XXI, Ahmedabad, CIT(A)-8, Ahmedabad, CIT(A) XXI and CIT(A)-8, Ahmedabad of different dates i.e. 25.7.2014, 1.1.2015, 25.7.2014, 25.7.2014,25.7.2014, 19.1.2015 & 14,2,2015 respectively. Since all these appeals pertain to the same assessee and the issues raised in all these appeals is common, these were heard together .....

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submitted at the time of hearing. 3. The effective ground of appeal is against levy of fee of ₹ 13,000/- for 1st quarter in financial year 2013-14 in the intimation u/s 200A processed by DCIT, CPC-TDS, Ghaziabad. Aggrieved, assessee went in appeal before CIT(A) against the levy of fee u/s 234E in the order u/s 200A. The CIT(A) upheld the view taken by the DCIT, CPC-TDS. 4. Aggrieved, the assessee is now in appeal before the Tribunal. The facts of the case are that the appellant has filed T .....

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377; 13,000/- for 1st quarter in financial year 2013-14 in the intimation u/s 200A and the ld. CIT(A) is not justified in upholding the view of Assessing Officer. Further he submitted that a similar issue in the case of Sibla Healthcare Private Ltd. vs. DCIT (TDS)-CPC, Ghaziabad in ITA No.90/ASR/2015 for Asst. Year 2013-14, has been decided by the Tribunal, Amritsar, in favour assessee vide its order dated 9.6.2015. He also submitted that in the cases of Lions Club of North Surat Charitable Trus .....

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ntative. 7. We have heard the rival submissions and carefully gone through the material placed on record. We find that in the cases of Lions Club of North Surat Charitable Trust vs. ITO in ITA Nos.3274, 3275 & 3276/Ahd/2014 for Asst. Year 2013-14, the coordinate Bench has decided an identical issue vide its order dated 3rd September, 2015 by following the decision of co-ordinate Bench Amritsar in the case of Sibla Healthcare Private Ltd. vs. DCIT (TDS)-CPC, Ghaziabad in ITA No.90/ASR/2015 fo .....

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he light of the applicable legal position. In addition to his argument on the merits, learned counsel has also invited our attention to the reports about the decisions of various Hon ble High Courts, including Hon ble Kerala High Court, in the case of Narath Mapila LP School Vs Union of India [WP (C) 31498/2013(J)], Hon ble Karanataka High Court in the case of Adithya Bizor P Solutions Vs Union of India [WP No. 6918- 6938/2014(T-IT), Hon ble Rajasthan High Court in the case of Om Prakash Dhoot V .....

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es 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 delivered a st .....

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accordance with sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C. (4) The provisions of this section shall apply to a statement referred to in sub-section (3) of section 200 or the proviso to subsection (3) of section 206C which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after the 1st day of July, 2012. 6. We may also reproduce the Section 200A which was inserted by the Finance Act .....

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d 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 pa .....

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t is filed. Explanation : For the purposes of this sub-section, "an incorrect claim apparent from any information in the statement" 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 source, where such rate is not in accordance with the provisions of this Act; (2) For the purposes of processing of statements under sub-sec .....

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auses shall be substituted with effect from the 1st day of June, 2015, namely:- "(c) the fee, if any, shall be computed in accordance 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 .....

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any, shall be computed in accordance with the provisions of section 234E". There is no dispute that what is impugned in appeal before us is the intimation under section 200A of the Act, as stated in so many words in the impugned intimation itself, and, as the law stood, prior to 1st June 2015, there was no enabling provision therein for raising a demand in respect of levy of fees under section 234E. While examining the correctness of the intimation under section 200A, we have to be guided .....

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t;. - Section 200A(1)(b) 9. No other adjustments in the amount refundable to, or recoverable from, the tax deductor, were permissible in accordance with the law as it existed at that point of time. 10. In view of the above discussions, in our considered view, the adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A. This intimation is an appealable order under section 246A(a), and, therefore, the CIT(A) ou .....

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