TMI Blog2016 (11) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 9-9-2016 - SHRI R.C. SHARMA, AM AND SHRI SANDEEP GOSAIN, JM For The Appellant : Shri Vinayak S. Gokhale For The Respondent : Shri Neil Philip ORDER Per Sandeep Gosain, Judicial Member: This appeal by the revenue is directed against the order dated 06.04.2015 of Commissioner of Income Tax (Appeals)-59, Mumbai (hereinafter called as the CIT(A) ) for assessment year 2013-14on the grounds mentioned below:- 1) The LD. CIT(A) erred in holding that the Appellant/Assessee defaulted in submitting the TDS statements in time for Quarter 3 of Financial Year 2012-13, thereby Liable to Pay Late Filing Fee U/S 234E. 2) The Ld. CIT(A) erred by holding the view that Fee that is sought to be collected U/S 234 E of the Act, is really nothing but a collection, for the special service being given to the detector, by allowing him to file the TDS Statements beyond the time prescribed under the act, read with the respective rules for the same act. 3) (a) The Ld. CIT(A) erred by following the Judgement of Bombay High Court's dismissing, the Writ Petition Filed challenging the Jurisdiction or Competence for levy of Late Filing Fee U/S 234E. However fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven the reasonable opportunity to the Assessee for explaining the above grounds attached to the Form No. 35, as the Late Fee U/S 234 is confirmed without proper hearing right to the Assessee/Appellant arbitrarily. 2. Since all the grounds raised by the assessee are inter-connected and interrelated therefore, we thought it fit to dispose off the same through the present common order. The only effective ground of appeal raised is against levying of fee of ₹ 53,200/- u/s 234E of the Act. In the present case ITO-TDS has passed order u/s 200A of I.T. Act thereby determining sum of ₹ 53,200/- to be paid by assessee vide order dated 04.03.2014. 3. Aggrieved by the order of the ITO-TDS-1(1)(4), assessee filed the appeal before CIT(A) and the CIT(A) after considering the case of the assessee had dismissed the appeal filed by the assessee vide order dated 06.04.2015. 4. Aggrieved by the order of CIT(A), the assessee filed the present appeal before us on the grounds mentioned herein above. 5. At the very outset, ld. AR representing the assessee relied upon the judgments passed by judicial authorities wherein the issue with regard to the levy of fee u/s 234 E of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the end of the financial year in which the statement 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-see ion (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 sub-section. 7. The Assessing Officer cannot make any adjustment other than the one prescribed above in Section 200A of the Act. By Finance Act, 2015, with effect from 01.06.2015, the Parliament amended Section 200A by substituting sub-section (1) of clauses (c) to (e). For the purpose of convenience, we are reproducing the amendment made in Section 200A by the Finance Act, 2015 as under:- 'In secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstance in that argument. When Section 234E clearly says that the assessee is liable to pay fee for the delay in delivery of the statement with regard to tax deducted at source, the assessee shall pay the fee as provided under Section 234E(1) of the Act before delivery of the statement under Section 200(3) of the Act. If the assessee fails to pay the fee for the periods of delay, then the assessing authority has all the powers to levy fee while processing the statement under Section 200A of the Act by making adjustment after 01.06.2015. However, prior to 01.06.2015, the Assessing Officer had every authority to pass an order separately levying fee under Section 234E of the Act. What is not permissible that levy of fee under Section 234E of the Act while processing the statement of tax deducted at source and making adjustment before 01.06.2015. It does not mean that the Assessing Officer cannot pass a separate order under Section 234E of the Act levying fee for the delay in filing the statement as required under Section 200(3) of the Act. The contention of the assessee can also be examined in the light of the provisions of Indian Penal Code. Section 396 of Indian Penal Code provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act, the assessing authority is well within his limit in passing a separate order levying such a fee in addition to processing the statement under Section 200A of the Act. In other words, before 01.06.2015, the assessing authority could pass a separate order under Section 234E levying fee for delay in filing the statement under Section 200(3) of the Act. However, after 01.06.2015, the assessing authority is well within his limit to levy fee under Section 234E of the Act even while processing the statement under Section 200A and making adjustment. 11. In view of the above discussion, this Tribunal is of the considered opinion that the Assessing Officer has exceeded his jurisdiction in levying fee under Section 234E while processing the statement and make adjustment under Section 200A of the Act. Therefore, the impugned intimation of the lower authorities levying fee under Section 234E of the Act cannot be sustained in law. However, it is made clear that it is open to the Assessing Officer to pass a separate order under Section 234E of the Act levying fee provided the limitation for such a levy has not expired. Accordingly, the intimation under Section 200A as confirmed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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