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Smt Anisha Shirishkumar Modi Versus The DCIT (TDS) , CPC, Gaziabad

2016 (3) TMI 499 - ITAT AHMEDABAD

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 contemplated under section 200A.

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he 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. Nos.3227 & 3228/Ahd/2015 - Dated:- 10-2-2016 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER For The Appellant : Shri Manish M.Rajvaidya, CA For The Respondent : Shri B. Panda, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : Both the appeals have been filed by the asse .....

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erred in law and on facts while levying the late filing fees u\s. 234E of ₹ 5,500/- (and in ITA No.3228/Ahd/15 of ₹ 9,375/-) on the appellant in the intimation issued u/s. 200A of the I.T. Act, 1961 dated 09-12-2013. The Learned A.O. and the Learned CIT(A) has also erred in law and on facts while not considering that vide Finance Act, 2015 clause (c) to (e) of subsection (1) of section 200A which is the operating section for processing the statements of Tax Deduction at source has b .....

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for raising a demand in respected of levy of fees under section 234E and prior to 01-06-2015 there was limited mandate of section 200A, which permitted computation of amount recoverable from, or payable to, the tax deductor after making the following adjustment: (a) after making adjustment on account of "arithmetical errors" and "incorrect claims apparent from any information in the statement" (b) after making adjustment for "interest, if any, computed on the basis of s .....

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nancial Year 2012-13 (quarter 3) has been processed vide intimation u\s. 200A dated 09-2-2013, which is before 01-06-2015, it is not permissible as per law as per the above discussion. (The Learned CIT(A) has also erred in law and on facts while not considering the case laws referred before him wherein it has been held that no penalty could be levied under section 234E prior to 01-06-2015, in the recent case of Amritsar Bench of Tribunal reported at 2015 ITL 533 in case of Sibia Healthcare Priva .....

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ndia (WP No. 771 of 2014) Hon'ble Bombay High Court. b. Without prejudice to whatever stated hereinabove the appellant would like to submit as under:- The Learned A.O. and the Learned CIT(A) has erred in law and on facts while not considering that as per the provision of Sec.234E have been made applicable w.e.f. 1st July, 2012. it states that "Amount of late fee shall be paid before delivering a TDS statement", it means that any late filing fee should have been deposited just at th .....

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or "TDS statement which is to be delivered or caused to delivered for tax deducted at source or tax collect at source, as the case mat be, on or after 1st July, 2012". Accordingly, late fee cannot be recovered for TDS statements, if not collected at the time of delivering IDS statement to the department. As well as that as per provision of section 204 specifically says that "for the purposes of Sec. 190 to Sec. 203 and for Sec. 285 of the act the following persons would be respons .....

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modify all or any grounds stated hereinabove as the facts and circumstances of the case my justify. 2.1. The short grievance of the assessee is that on the facts and circumstances of the case the ld.CIT(A) has erred in upholding the levy of the late filing fees in the course of processing TDS return under section 200A of the Act. 3. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below as well as duly considered the facts of .....

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pplicable 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 Vs Union of India [ .....

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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 statement within the .....

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b-section (3) of section 200 or the proviso to subsection (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 sub-section (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 2009 with effect f .....

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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 .....

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tion : 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-section (1), the Board .....

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tituted 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 prepared or generated an .....

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rdance 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 by the limited mandate of Section 20 .....

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fundable 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) ought to have examined legality of the adjustment made under this i .....

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