TMI Blog2020 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be restricted to one transaction is not acceptable. At this stage, it will be relevant to observe, clause (c) of sub section (1) of section 200A of the Act contemplates that while processing the TDS return, fee under section 234E of the Act shall be computed. Thus, use of word shall in the aforesaid provision makes it mandatory on the part of the Assessing Officer to levy fee under section 234E of the Act. Since, the assessee has filed separate TDS statements under section 200(3) of the Act read with rule 26QB, there is no error on the part of the Assessing Officer in computing fee under section 234E of the Act while processing such statements. As regards the contention of the learned Authorised Representative that appeal against levy of fee under section 234E of the Act is maintainable before the learned Commissioner (Appeals), we find merit in the same. Therefore, to that extent, the assessee s contention is accepted. However, it will not make much difference as learned Commissioner (Appeals) has decided the issue on merit. In view of the aforesaid, we do not find any reason to interfere with the decision of learned Commissioner (Appeals) on the issue. - Decided against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o above, the Tribunal has held as under: 8. We have considered rival submissions and perused the material on record. We have also applied our mind to the decisions relied upon by the learned Authorised Representative. There is no dispute between the parties with regard to the primary facts. Vide allotment letter dated 29th October 2015, ninety six flats along with car parking space was allotted to the assessee for a total consideration of ₹ 100,51,64,650, and on the date of allotment itself i.e., on 29th October 2015, the assessee paid a part of the sale consideration amounting to ₹ 55 crore to the developer / builder and while making such payment, the assessee in compliance to the provisions contained under section 194IA of the Act has deducted tax at source @ 1%. Since there was a delay in filing the TDS statements as provided under section 200(3) of the Act, the Assessing Officer while processing the TDS statements under section 200A of the Act has levied fee under section 234E of the Act. Challenging the levy of fee under section 234E of the Act, the learned Authorised Representative has made submissions before us, which can be summarized as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to the Government account, but it has to file a statement under section 200(3) of the Act within the prescribed time limit. It is evident, the assessee has also followed the aforesaid procedure. The only default on the part of the assessee is, it has neither paid the TDS amount nor filed the statement under section 200(3) read with rule 30A and 31A within the time prescribed therein. Therefore, in case of any default in filing the statement in terms of section 200(3) of the Act, the provisions contained under section 234E would automatically get triggered and fee prescribed therein has to be paid. While processing the TDS statement under section 200A of the Act, the Assessing Officer is empowered to levy fee under section 234E of the Act, which the Assessing Officer has done in the present case. 10. The validity of the provision contained under section 234A of the Act came up for scrutiny before the Hon'ble Jurisdictional High Court in case of Rashmikant Kundalia Anr. v/s Union of India, [2015] 373 ITR 268 (Bom). While deciding the issue, the Hon'ble Jurisdictional High Court not only upheld the validity of section 234E of the Act, but also obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed form, manner and time applies to all TDS provisions including section 194IA of the Act contained under Chapter XVII. Therefore, assessee s claim that since the challan cum statement is generated on a single date, therefore, it will not come within the purview of section 200(3) of the Act, is unacceptable. Thus, we are of the view that the TDS statements in Form no.26QB also comes within the ambit of section 200(3) of the Act. 12. The next contention of the learned Authorised Representative that no additional burden is cast on the Departmental Authorities is also equally unacceptable considering the fact that there is a delay in filing the TDS statement in Form no. 26QB. As held by the Hon'ble Jurisdictional High Court in case of Rashmikant Kundalia Anr. (supra) for the purpose of allowing the assessee to file TDS statement beyond the prescribed time and for regularizing the same, fee under section 234E of the Act has to be charged as it is in the nature of a privilege and special service provided to the assessee. Therefore, this contention of the learned Authorised Representative also fails. 13. Now, coming to the primary cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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