TMI Blog2017 (3) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the assessee. - ITA NOS. 4739 & 4745/MUM/2016, ITA NO. 4743/MUM/2016, ITA NO. 4747/MUM/2016, ITA NO. 4748/MUM/2016, - - - Dated:- 28-2-2017 - SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER For The Assessees : Ms. Hema Bhanushali For The Revenue : Ms. Aarju Garodia ORDER PER G.S.PANNU, A.M : The captioned are five appeals by three different assessees involving a common issue pertaining to charging of late fees u/s 234E of the Act for delay in filing of quarterly TDS statement. Since it was a common point between the parties that the issue as well as the facts and circumstances involved in the captioned appeals are similar, they have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. 2. In order to appreciate the controversy, the appeal in ITA No. 4739/Mum/2016 in the case of M/s. Milestone Space is taken as the lead case. This appeal is directed against the order of CIT(A)-1, Thane dated 21.3.2016, which in turn has arisen against the intimation u/s 200A of the Income Tax Act, 1961 (in short the Act ) dated 23.12.2013 issued by DCIT, CPC (TDS), Ghaziabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsthan vs UOI, 63 taxmann.com 243 (Rajasthan) , which has also been relied upon by the CIT(A). 5. We have carefully considered the rival submissions. The learned representative for the assessee had rightly asserted that the impugned issue is no longer res integra and has already been adjudicated upon by our coordinate Benches. In the case of M/s. Kash Realtors Pvt. Ltd. Ors. (supra) our coordinate J Bench has considered an identical controversy and has held as under :- 5. We have heard the rival contentions and have also perused the material on record. The contention of the Ld. respective Counsels for the assessees has been that this 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 obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity of the section 234E. However, the issue whether the fees leviable under section 234E can be adjusted while processing the TDS statements under section 200A of the Act in relation to the period prior to 01.06.15, has neither been raised before the Hon ble Bombay High Court nor has been adjudicated. Hence, the reliance of the Revenue on the decision of the Hon ble Bombay High Court in the case of Rashmikant Kundalia vs. Union of India (supra) so far as the issue is concerned, is of no help to the Revenue. One of the contentions raised before the Hon ble Bombay High Court was that under the provisions of the Act, no appeal is provided for or from an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the assessee fails to pay the fees before filing the statement under section 200(3) of the Act, the Assessing Authority may pass a separate order levying of such a fee under section 234E of the Act, if the same is not barred by time limit or otherwise under any other provisions of law. The Assessing Authority, however, could not adjust the fees leviable under section 234E while processing the TDS statement under section 200A of the Act. However, after 01.06.15 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. The relevant part of the 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent after the expiry of one year from the end of the financial year in which the statement is filed. Explanation - For the purposes of this sub-section, art 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fanciful. However, we do not find any substance 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 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fee before filing the statement under Section 200(3) of 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. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Writ Petition nos. 2663-2674/2015(T-IT) Ors. in Sri Fatheraj Singhvi Ors vs. Union of India Ors. dated 26.8.2016 wherein the intimation issued u/s 200A of the Act levying fee for delay in filing of TDS statement as per Sec. 234E of the Act has been quashed. The Pune Bench of Tribunal has referred to the judgment of Hon'ble Karnataka High Court in the following words:- 33. We further find that in recent judgment dated 26.08.2016, the Hon ble Karnataka High Court in Writ Appeal Nos.2663-2674/2015(T-IT) Ors in Sri Fatheraj Singhvi Ors Vs. Union of India Ors has quashed the intimation issued under section 200A of the Act levying the fees for delayed filing the TDS statements under section 234E of the Act. The Hon ble High Court notes that the Finance Act, 2015 had made amendments to section 200A of the Act enabling the Assessing Officer to make adjustments while levying fees under section 234E of the Act was applicable w.e.f. 01.06.2015 and has held that it has prospective effect. Accordingly, the Hon ble High Court held that intimation raising demand prior to 01.06.2015 under section 200A of the Act levying section 234E of the Act late fees is not valid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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