TMI Blog2016 (1) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT (Appeals)] grossly erred on facts and in law in confirming the levy of fee for an amount of ₹ 31067/- u/s 234E of the I.T. Act, 1961 by holding that the same is not an appealable order u/s 246A of the Act and further that there is no discretion or application of mind involved by the AO (C.P.C.) while levying this fine and is mandatory in nature and thus the finding being against all settled principles of law may kindly be ordered to be quashed. Notwithstanding Ground No. I taken above:- II. The Ld. CIT (Appeals) further grossly erred on facts and in law in confirming the levy of fee on the present set of facts and circumstances on merits also and in not appreciating the submissions so filed before him during the course of appellate proceedings. III. In conforming the levy of fee the Ld. CIT (Appeals) chose to ignore or rather failed to completely appreciate the fact that prior to 1st June 2015 there was no enabling provision in processing the intimation u/s 200A for raising a demand in respect of levy of fees u/s 234E of the Act and thus any levy of such fee prior to the amendment made by the Finance Act 2015 in section 200A is illegal, bad-in-law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.90/Asr/2015. Copies of the order of the Tribunal are placed on record for perusal. 3. Ld. DR simply placed reliance upon the order of the CIT(A). 4. Having carefully examined the order of the lower authorities, in the light of rival submissions, we find that impugned issue is squarely covered by the orders of the Tribunal in which it was held that the Assessing Officer cannot levy the fees as per provision of Section 234E of the Act while processing the statement u/s 200A before the amendment made by the Finance Act, 2015. The relevant observations of the orders of the Tribunal are extracted hereunder for the sake of reference:- 4. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. In addition to his argument on the merits, learned counsel has also invited our attention to thereports 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-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n deducting any sum (hereafter referred to in this section as deductor) under section 200, such statement shall be processed in the following manner, namely:- (a) the 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 amount of refund due to, him under clause (c); and (e) the amount of refund due to the deductor in pursuance of the determination under clause (c) shall be granted to the deductor: Provided that no intimation under this sub-section shall be sent after the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 by the limited mandate of Section 200A, which, at the relevant point of time, permitted computation of amount recoverable from, or payable to, the tax deductor after making the following adjustments: (a). after making adjustment on account of arithmetical errors and incorrect claims apparent from any information in he statement - Section 200A(1)(a) (b). after making adjustment for interest, if any, computed on the basis of sums deductible as computed in the statement . - 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
