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2017 (5) TMI 920 - ITAT AMRITSAR

2017 (5) TMI 920 - ITAT AMRITSAR - TMI - 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 conte .....

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e common issue for consideration therefore; all the three appeals have been taken for consideration conjointly. For the sake of brevity and convenience, the grounds and facts of appeal no. 420/(Asr)2015 have been taken under consideration. 2. The assessee has raised the following grounds of appeal. 1. That the Learned Commissioner of Income Tax (Appeals), Bathinda, has grossly erred in law and on the facts in confirming the order of the Assessing Officer thereby Charging late filing fees at S .....

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(A) did not appreciate that on the basis of provisions of section 234E, such a levy could not be effected in the course of intimation u/s 200A prior to 01/06/2015. As such, the order itself passed by the Assessing Officer is illegal, invalid, void abinitio and the same is liable to be cancelled. Similarly, the worthy CIT(A) has grossly erred in confirming the order of the Assessing Officer. 3. Any other ground of appeal which may be urged at the time of hearing of the appeal . 3. It is apparent .....

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eal papers were received in our office (Advocate office) and due to the negligence mistake of our staff members (Advocate staff), these appeals were not filed in time, therefore, there was a reasonable and sufficient cause in filing belated appeals. 4. In the application, it is also written that every day delay cannot be stretched by a pedantic approach if every days has to be explained why not every hours delay, every second delay. In the application, it is written the assessee also relied upon .....

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otherwise the assessee failed to file an application for condonation of delay with supporting affidavit from the application is also does not reflect that due to whose negligence the appeals were not filed in time and when the papers have been received in (Advocate office). From the contents of the application, we are unable to understand that what prevented the assessee from filing of an appeal for condonation of delay at the time of filing appeal in October, 2015. The Apex Court reminded that .....

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therefore, in the interest of justice and to sub-serve the principle of natural justice, we are inclined condone the delay of appeals. 7. Now let us proceed with the merits of the case from the application filed by the Ld. Counsel, it engaged that the assessee is relied upon the order of Co-ordination Bench of ITAT, Amritsar passed in Sibia Health Care Private Ltd. In ITA No. 90/(Asr) 2015, which has been further followed by Amritsar Bench in various case. 8. On the other hand, the Ld. DR heavi .....

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rgument 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 [WP No. 1981 of 2014] and of Hon ble Bombay Hi .....

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pass 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 time prescribed in sub-section (3) of section .....

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o 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 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 from 1st April 2010. This statutory provision .....

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hmetical 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 of tax or interest; (d) an intimation shall .....

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"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 may make a scheme for centralized processin .....

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, 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 and sent to the deductor specifying the sum de .....

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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 200A, which, at the relevant point of time, pe .....

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he amount refundable 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 .....

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