TMI Blog2017 (3) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. - ITA No. 3938/Mum/2015 - - - Dated:- 15-3-2017 - Shri Jason P. Boaz, Accountant Member and Shri Sanjay Garg, Judicial Member For The Appellant : None For The Respondent : Shri Saurabh Kumar Rai ORDER Per Jason P. Boaz, A.M. This appeal by the assessee is directed against the order of the CIT(A)- 59, Mumbai dated 06.04.2015 for A.Y. 2013-14. 2. In this appeal, the grounds raised by the assessee are as under: - The learned CIT Appeals was not justified in dismissing the appeal filed by the appellant on the following grounds a The order passed by the CIT(A)-59, Mumbai states that Shri Ravindran CA was present for the Appellant. However, in para 2 of the order it is stated that none attended and no written submission was filed which is self contradictory. b The delay in download of CSI files after e-payment is being made is beyond the control of the appellant and as such levy of penalty for the same is unjustified. c The appellant relies in the judgement pronounced by the Hon. Amritsar Bench of the ITAT in the case of Sibia Healthcare Pvt. Ltd. (I.T.A No. 90/Asr/2015) of 9th June, 2015 wherein it was held that the levy of fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue has already been considered by the Amritsar Bench of the Tribunal in the case of Sibia Healthcare Pvt. Ltd. vs. DCIT (2015) 171 TTJ (ASR) 0145 wherein the Amritsar Bench of the Tribunal has held that since the intimation under section 200A is an appealable order before the Ld. CIT(A) (w.e.f. 1.7.2012) under section 246A(a) and therefore the Ld. CIT(A) could have examined the validity of the adjustments made under the intimation under section 200A in the light and scope of the provisions of section 200A. The Tribunal further observed that since there was no enabling provision under section 200A before 01.06.15 providing for the adjustment in respect of levy of fees under section 234E while processing the TDS statements, hence in the absence of such an enabling provision, no such levy could be affected. The provision for making adjustments regarding fees leviable under section 234E has been introduced by way of amendment made vide Finance Act, 2015 w.e.f. 01.06.15 only. The Tribunal therefore held that the action of the AO in making adjustments with regard to the fees leviable under section 234E while processing the TDS statements under section 200A for the period prior to 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary order passed under section 234E of the Act. The Hon ble Bombay High Court observed that a right of appeal is not a matter of right but is a creature of statute and if the legislature deems it fit not to provide a remedy of appeal, so be it. The Hon ble Bombay High Court has observed that even in such a scenario, the aggrieved party is not left remediless rather such aggrieved person can always approach the Hon ble High Court in extraordinary equitable jurisdiction under article 226/227 of the Constitution of India, as the case may be. 8. However, in the cases before us, the grievance of the assessees is not against the levy of fees under section 234E of the Act independently rather, the issue is that while processing the TDS statements under section 200A of the Act, whether or not, the fees leviable under section 234E can be adjusted therein? No doubt, the order passed under section 200A is an appealable order before the Ld. CIT(A) under section 246 of the Act (w.e.f. 1.7.2012). The appellate order of the Ld. CIT(A) passed under 250 of the Act is further appealable before this Tribunal under section 253 of the Act. Hence, we do not find any illegality in the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Chennai Bench of the Tribunal for the sake of completeness is reproduced as under: 4. The Ld.counsel invited our attention to Section 234A of the Act and submitted that when an assessee fails to deliver the statement within the prescribed time, the assessee is liable to pay by way of fee a sum of Z200/- for every day during such a period the failure continues. Referring to the word used in the section 234E he shall be liable to pay , the Ld.counsel pointed out that the assessee is liable to pay fee. However, it does not empower the Assessing Officer to levy the fee. Section 234E(3) of the Act provides for payment of the fee before delivery of statement under Section 200(3) of the Act. Therefore, the fee has to be paid by the assessee voluntarily before filing the statement under Section 200(3) of the Act and the assessing authority has no power to levy the fee. 5. On the contrary, Sh. P. Radhakrishnan, the Ld. Departmental Representative, submitted that Section 234E of the Act provides for payment of fee, if the assessee fails to deliver the statement as prescribed in Section 200(3) of the Act. Therefore, the Assessing Officer has every authority to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing 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 section 200A of the Income-tax Act, in sub-section (1), for clauses (c) to (e), the following clauses shall be substituted 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 generate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to pass an order separately levying fee under Section 234E of the Act. What is not permissible is 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. 9. 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 for punishment for dacoity with murder. The punishment is imprisonment for life or rigorous imprisonment for a term which may be extended to ten years and also liable to fine. For the purpose of convenience, we are reproducing Section 396 of Indian Penal Code, hereunder:- 396. Dacoity with murder - If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, 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 by the CIT(Appeals) in sofar as levy of fee under Section 234E is set aside and fee levied is deleted. However, the other adjustment made by the Assessing Officer in the impugned intimation shall stand as such. 12. In the result, all the appeals filed by the assessees are allowed as indicated above. 10. Respectfully following the above proposition laid by the Chennai Bench of the Tribunal in the case of Smt. G. Indhirani Others vs. DCIT, CPC-TDS (supra) after duly considering the decision of the Amritsar Bench of the Tribunal in the case of Sibia Healthcare Pvt. Ltd. vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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