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2016 (3) TMI 455 - ITAT AHMEDABAD

2016 (3) TMI 455 - ITAT AHMEDABAD - TMI - Levy of fees under section 234E - intimation issued under section 200A in respect of processing of TDS - Held that:- We find that the issue in all these appeals is now squarely covered in favour of the assessee by the decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT [2015 (6) TMI 437 - ITAT AMRITSAR] adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments cont .....

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ons, as also bearing in mind entirety of the case, the impugned levy of fees under section 234E is unsustainable in law. We, therefore, delete the impugned levy of fee under section 234E of the Act. - Decided in favour of assessee. - I.T.A. No.3401/Ahd/2015 - Dated:- 10-2-2016 - SHRI KUL BHARAT, JUDICIAL MEMBER And SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Appellant : Shri Aseem Thakkar, AR For The Respondent : Shri B.Panda, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by th .....

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. 19/05/2014 in respect of Form No.26Q filed by the Appellant for quarter -3 of F.Yr.2013-14 which is illegal and bad in law. Hence the same should be cancelled. 2. The learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Dy.Comm.of Income Tax, Centralized Processing Cell-TDS, Ghaziabad, U.P. in passing intimation order u/s.200A of the I.T. Act, 1961 without giving show cause notice to the appellant. Hence the order so passed without giving an opportunity of bei .....

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ore the date of hearing of appeal. 3. Grounds Nos.1 to 3 are inter-connected and, therefore the same are decided together. 3.1. Brief stated facts are that while generating initiation u/s.200A of the Income Tax Act, 1961 (hereinafter referred to as the Act) levied penalty u/s.234-E of the Act for late filing of TDS return vide order dated 19th May-2014. Aggrieved by this action, assessee preferred an appeal before ld.CIT(A), who after considering the submissions confirmed the penalty. Aggrieved .....

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so relied on the decision of this Tribunal (ITAT D Bench, Ahmedabad) in the case(s) of Tanish Industries Pvt.Ltd. v. DCIT & Irfan Iqbalbhai Ajmerwala vs. DCIT in ITA Nos.2296 & 2297/Ahd/2015 respectively for AY 2014-15, dated 30/11/2015. He submitted that the assessee preferred an appeal against the levy of late filing fee u/s.234-E of the I.T. Act before the ld.CIT(A), who dismissed the appeal vide order dated 01/09/2015. 5. We have heard the representatives of the respective parties an .....

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in the case of Indian Overseas Bank Vs. DCIT, Ghaziabad rendered in ITA No.3271/Ahd/2014. It reads as under: 5. I find that the issue in appeal is now squarely covered in favour of the assessee by the decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT - ITA No.90/Asr/2015, vide order dated 9th June, 2015, wherein the Division Bench has inter alia observed as under :- 4. We have heard the rival contentions, perused the material on record and duly considered f .....

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f Om Prakash Dhoot Vs Union of India [WP No. 1981 of 2014] and of Hon ble Bombay High Court in the case of Rashmikant Kundalia Vs Union of India [WP No. 771 of 2014], granting stay on the demands raised in respect of fees under section 234E. The full text of these decisions were 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, .....

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o be delivered a statement within the time prescribed in sub-section (3) of section 200 or the proviso to subsection (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues. (2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be. (3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be deliv .....

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d by the Finance Act 2009 with effect from 1st April 2010. This statutory provision, as it stood at the relevant point of time, was as follows: 200A: Processing of statements of tax deducted at source (1) Where a statement of tax deduction at source, or a correction statement, has been made by a person 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 Chap .....

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1, 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 expiry of one year from the end of the financial year i .....

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ements under sub-section (1), the Board may make a scheme for centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said subsection. 7. By way of Finance Act 2015, and with effect from 1st June 2015, there is an amendment in Section 200A and this amendment, as stated in the Finance Act 2015, is as follows: In section 200A of the Income-tax Act, in sub-section (1), for clauses (c) to ( .....

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ation 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 statement and issuance of intimation under section 200A in respect thereof, an adjustment could also be made in respect of the .....

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ed 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 the 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 .....

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ity 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 .....

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