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2015 (6) TMI 1005 - ITAT INDORE

2015 (6) TMI 1005 - ITAT INDORE - TMI - Fee for default in furnishing statements u/s 234E in the intimation u/s 200A - levy of fees u/s 234E appealability before the learned CIT(A) - Held that:- Late filing of the returns or statements of tax deducted or collected at source is regularised upon payment of the fee as set out in section 234E. This is nothing but a privilege and a special service to the deductor allowing him to file the returns or statements of tax deducted or collected at source be .....

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a right of appeal is not a matter of right but is a creature of the statute and if the Legislature deems it fit not to provide a remedy of appeal, so be it. Even in such a scenario it is not as if the aggrieved party is left remediless. Such aggrieved person can always approach the court in its extraordinary equitable jurisdiction under article 226/227 of the Constitution of India and in that perspective the Hon'ble High Court held the provision as intra vires the Constitution of India.

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by the Department for late filing of statement. The Assessing Officer has no power to condone the delay in late filing of the statement of tax. In view of these facts the appeal of the assessee is not maintainable, hence the same is dismissed. - Decided against assessee - ITA No. 550/Ind/2014 - Dated:- 11-6-2015 - Shri D.T. Garasia, Hon ble Judicial Member and Shri B.C. Meena, Hon ble Accountant Member For the Appellant : Shri Rajesh Mehta For the Respondent Shri R.A. Verma O R D E R PER SHRI B .....

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from the due date of filing TDS statement till the date of filing TDS statement. The learned CIT(A) has dismissed the appeal of the assessee by holding as under :- 3.1 The appellant, vide para 2 of the submissions, has strongly contended that processing u/s 200A of the IT Act, 1961 does not cover the processing of the quarterly TDS statements for the purpose of charging fee u/s 234E of the IT Act, 1961. The levy of fee has been found as automatic process which goes with the default in filing the .....

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n his power to rectify the same in accordance with the express provisions of law. Therefore, the contention of the appellant has not been found acceptable. 3.2 The appellant vide para 3 of the submissions has contended that in the instant case, the person responsible for paying the amount of fee is not specified because the same has not been brought under section 204 of the I.T. Act, 1961 which defines the responsible person . In my opinion, the contention raised by the appellant has not been fo .....

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fter the taxes are deducted and deposited with the government. In other words, the appellant has tried to state that the period of default shall be counted from the date of deducting and depositing of the tax till the filing of the statement which means the prescribed dates for filing the statements as per rule 31A of the I.T. Rules, 1962 r.w. section 200(3) of the I.T. Act, 1961 shall have no meaning. The argument of the appellant is totally misplaced. The relevant provisions of the act are ver .....

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can be prepared for specified period and in specified form after paying the tax deducted to the credit of Central Government within the time prescribed. The time for filing the same has been prescribed under rule 31A(2) of the IT Rules, 1962. The penal fee is leviable for not filing or delivering the said statement within the time prescribed in the above rules which in the case of appellant was 15th of July, 2013 for Ist quarter, 15th Ocf. For IInd quarter, 15th Jan. for IIIrd quarter and 15th o .....

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, then the responsible persons may not deposit the collected amounts for years together and get away with the penal provision of charging fee as prescribed u/s 234E of the I.T. Act, 1961. 3.5 The intention of the legislature is twofold, one to get the compliance for deducting and depositing the taxes in terms of section 200(3) of the IT Act, 1961 and secondly to get the statement of same filed within the prescribed time frame so as to make useful analysis of the statement. Further, the argument .....

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iances of statutory provisions of the IT Act, 1961. The nature and role of both the levies are altogether different. Therefore, the fee as prescribed u/s 234E has to be charged automatically for the default in filing the quarterly TDS statement within the prescribed due dates as specified under rule 31A(2) of IT Rules, 1962. The scheme of the interpretations. In normal circumstances, the question of interpretation of provisions and the words arise if there is ambiguity in the language., In the i .....

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case of Pandian Chemicals vs. CIT; 262 ITR 278 has clearly laid down that the rules of interpretation will come into play only if there is any doubt with regard to the express language used in the provision. Where the words are unequivocal, there is no scope for importing the rule of liberal interpretation of an incentive provision. Similarly, Hon'ble ApexCourt in the case of CIT vs. Budda Raja & Company 204 ITR 412 has held that liberal interpretation of provision should not do violenc .....

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n, I am very clear in my mind that the wording of the Act is very clear which requires no interpretation in the favour of assesse. Accordingly, the A.O. was found justify in charging the fee u/s 234E of the IT Act, 1961 while processing the return u/s200A of the IOT Act, 1961. 3.8 The contention of the appellant raised at para 5 of submissions, challenging the constitutional validity of the section has not been found maintainable at my level as such not adjudicated. 3.9 The appellant vide para 6 .....

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e terms of section 200(3) of I.T. Act, 1961. 3.10 Similarly, vide para 7 of the written submissions, the appellant has contended that the responsible person is an honorary agent of the department and he cannot be penalized for delay in the filing quarterly TDS statement. Moreover it has been stated that the levy if expondentially harsh, burdensome, deceitful, atrocious and obnoxious. Thje words and phrases as above were not required to be used against the simple provision brought in the act to e .....

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the circumstances of the case ld. CIT(0A erred in law as well as on facts in confirming late fees u/s 234E of the Income Tax Act, 1961 (iii) The grounds on which appeal is dismissed by ld. CIT(A) is merely on the basis of surmises and conjectures. (iv) The order u/s 200A of the Income Tax Act, 1961 does not permit levy of late fees u/s 234E of the Income Tax Act, 1961 Hence invalid, illegal and needs to be quashed. (v) The provision of sec. 204 of the Income Tax Act, 1961 Person responsible for .....

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of fees levied u/s 234E of the Act. The assessee has taken various objections like section 200A of the Act does not permit levy of late fee u/s 234E of the Act and provisions of section 204 of the Act where person responsible for dues u/s 192 to 203AA and section 285 of the Act does not cover section 234E of the Act. It was also claimed that the deductor has already been penalised by way of interest for late payment u/s 201(1A) of the Act. 4. We have heard both the sides on this issue. The prov .....

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ion (1) shall not exceed the amount of tax deductible or collectible, as the case may be; (3) The amount of fee referred to in subsection (1) shall be paid before delivering or causing to be delivered a statement in 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 sub-section (3) of section 206C which is to be delivered or .....

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e provisions was challenged. While deciding the writ petition filed under Article 226 of the Constitution of India in the case of Rashmikant Kundalia and another vs. Union of India; 373 ITR 268 the Hon'ble Bombay High Court has held that these provisions are intra vires of the Constitution of India. The Hon'ble High Court has also made it clear that a substantial number of deductors were not furnishing their returns or statement of tax deducted or collected at source within the prescribe .....

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e Deptt. has to provide due to the late filing of the statements of tax deducted or collected at source. A person deducting the tax (the deductor) is allowed to file his statement of tax deducted at source beyond the prescribed time provided he pays the fee as prescribed under section 234E of the Act. In other words, the late filing of the returns or statements of tax deducted or collected at source is regularised upon payment of the fee as set out in section 234E. This is nothing but a privileg .....

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