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TMI Blog2024 (9) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the TDS Statement and more-so when the deduction as well as its deposit to the Govt exchequer was well in time. 3. That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same. 3. Briefly the facts of the case are that the assessee purchased a property from a non resident vide sale deed dt. 25/04/2019 and basis certificate obtained by the seller under section 195 of the Act, the assessee deducted TDS on 24/04/2019 and deposited the tax on the same day. The TDS statement in Form 27Q as required under section 200(3) was filed on 21/11/2020 as against the due date of 31/07/19, the same was processed and the AO passed the order under section 200A on 26/11/2020 wherein the AO levied late fee under section 234E amounting to Rs. 95,800/-. The assessee carried matter in appeal before Ld. CIT(A) who has sustained the order of the AO and against the said order, the assessee has come in further appeal before us. 4. During the course of hearing, the Ld. AR argued the matter at length and reiterated the submissions made before the lower authorities and the contents thereof read as under: "1. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4A), in case of deduction u/s 194-IA (i.e., purchase of immovable property from resident), no separate TDS statement is required to be filed and TPS challan deposit is enough. "(4A) Notwithstanding anything contained in sub-rule (1) or sub-rule (2) or sub-rule (3) or sub-rule (4), every person responsible for deduction of tax under section 194-IA shall furnish to the Director General of Income-tax (System) or the person authorised by the Director General of Income-tax (System) a challan-cum-statement in Form No. 26QB electronically in accordance with the procedures, formats and standards specified under sub-rule (5) within [thirty days] from the end of the month in which the deduction is made." As per Rule 31A(l)(b)(i) TPS statement needs to be filed respect of non-resident deductee. "31A. ( I ) Every person responsible for deduction of tax under Chapter XVII-B, shall, in accordance with the provisions of subsection (3) of section 200, deliver, or cause to be delivered, the following quarterly statements to the Director General of Income-tax (Systems) or the person authorised by the Director General of Income-tax (Systems), namely:- (a) Statement of deduction of tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack seat. Further, as the appellant was confined to his home, he was prevented to discuss further and seek further professional advice on this topic. 4. These were the reasonable causes, which prevented the appellant to file TDS Statement in time. There is no loss to revenue due to late filing of the TDS return. Neither there was any intention on the part of the appellant to derive any benefit nor did he actually derive any benefit from late filing of the return. The appellant has promptly deposited the TDS with govt, exchequer. It was only due to intricate provisions of the Act, which a layman finds difficult to understand (TDS statement not to be filed in case of purchase of property but to be filed if purchase is from non-resident), the situations prevailing in the family of the appellant and hardships caused due to spread of Covid that the appellant was unable to file the TDS return on time. Considering the fact that no loss is caused to the Revenue and the circumstances due to which the appellant was unable to file the return, in the interests of justice, the appellant cannot be saddled with levy of late filing fee u/s 234E of the Act. For this proposition we rely on ratio o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal of the appellant deserve to be allowed. 6. It is further submitted that an order passed u/s 200A, wherein fee u/s 234E has been charged, is appealable u/s 246A before the Hon'ble CIT(A). This has been a consistent view by a number of decisions including in Commandant SRPF GR-VII Welfare Fund vs ACIT ITA 1937/Pune/2019 dtd. 30.06.2022. Moving forward, if the appeal has been held by higher judiciary to be maintainable but the relief in any case can not be granted by reducing or deleting the fee charged u/s 234E, then the appeal would be rendered an empty formality and a ritual which can not be the intent of the legislature and the ratio of l aw laid down in these decisions where it was held that appeal is maintainable. Therefore, your Honour's have enough powers u/s 251 to consider the genuine reason for delay in filing of TDS statement and if found genuine, the same can be reduced or deleted. It is prayed accordingly. 7. In view of above submission, the said delay deserved to be considered leniently & said fee u/s 234E deserves to be deleted. Appropriate relief is prayed." 5. Per contra, the Ld. DR has relied on the findings of the Ld. CIT(A) which read as under: "7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of the late filing fee u/s 234E of the Act. The only plea raised by the appellant is that there was reasonable cause for such delay in filing quarterly TDS statement. The appellant submitted that it was only due to intricate provisions of the Act, which a layman finds difficult to understand (TDS statement not to be filed in case of purchase of property but to be filed if purchase is from non-resident), the situations prevailing in the family of the appellant and hardships caused due to spread of Covid that the appellant was unable to file the TDS return on time. However, since the levy of late fee as prescribed u/s 234E of the Act is mandatory and consequential, therefore, the same c a n n o t b e deleted on the ground of reasonable cause. There is no provision in the Act which gives power to the AO or CIT(A) to condone the delay in filing TDS statement on account of any reasonable or sufficient cause for such failure. Moreover, without prejudiced to the above, the ignorance of law cannot be considered as a reasonable cause. 7.3.1 The case laws relied upon by the appellant are distinguishable on the facts as discussed below: a) G.B. Builders vs. ACIT-CPC(TDS) [ITAT, Ahmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation issued u/s 200A of the Act is not in accordance with the provisions of Section 234E or Section 200A of the Act on account of computation of period of delay or quantification of the late filing fee u/s 234E of the Act. 7.5 In view of the above facts and law, the charging of late filing fee u/s 234E of Rs. 95,800/- is upheld. This ground is accordingly dismissed." 6. We have heard the rival contentions and purused the material available on record. In the instant case, it is an admitted fact that the TDS statement in Form 27Q as required under section 200(3) was filed by the assessee on 21/11/2020 as against the due date of 31/07/19 resulting in levy of late filing fee by the AO under section 234E amounting to Rs. 95,800/- in terms of order passed by the AO under section 200A dated 26/11/2020. There is thus a delay in filing of Form 27Q and the question that arise for consideration is whether the AO has any discretion in examining the explanation so submitted by the assessee explaining the delay in filing the TDS Statement and where the same is found to be acceptable, can the AO reduce or delete the late filing fee so levied. In other words, whether the concept of reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed:] [Provided that the person may also deliver to the prescribed authority a correction statement for rectification of any mistake or to add, delete or update the information furnished in the statement delivered under this subsection in such form and verified in such manner as may be specified by the authority.]" The quarterly TDS statement as well as annual TDS returns are required to be processed u/s 200A of the Act which reads as under: "Processing of statements of tax deducted at source. 200A. (1) Where a statement of tax deduction at source [or a correction statement] has been made by a person deducting any sum (hereafter referred to in this section as deductor) under section 200, such statement shall be processed in the following manner, namely:- (a) the sums deductible under this Chapter shall be computed after making the following adjustments, namely:- (i) any arithmetical 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 fee, if any, shall be computed in accordance with the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement. The levy has to be computed in accordance with the rate prescribed u/s 234E of the Act. 7. As regards the quarterly TDS statements for the F.Y. 2016-17, the assessee initially filed statements on 12/06/2017 and consequently the A.O. issued intimation u/s 200A of the Act on 15/06/2017 whereby the adjustment on account of late filing fee u/s 234E of the Act was made by the A.O. These facts are not in dispute in so far as the delay in filing the quarterly statements. Since the assessee has filed rectification statements on 05/04/2018, therefore, the A.O. has again issued intimation u/s 154 r.w.s. 200A of the Act. The assessee has not pointed out any mistake in issuing the intimation by the A.O. on account of computation of period of delay or quantification of the late filing fee u/s 234E of the Act. Therefore, as far as merits of the appeals are concerned, we do not find any substance or merits in these appeals as the delay in filing the quarterly statement is accepted by the assessee. The only plea raised by the assessee before the ld. CIT(A) as well as before us is the explanation for such delay in filing quarterly statement. However, since the levy of late fee as pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of any such allegation that the A.O. has violated any of the provisions of Section 234E or Section 200A of the Act, the adjustment made by the A.O. on account of late filing fee u/s 234E of the Act cannot be deleted. 8. The Coordinate Chandigarh Bench in case of Gurpreet Singh (supra), where again, one of us was a party, has also held that there is no opposition that late fee has become mandatory by incorporating section 234E in the statue. At the same time, it was held that where the lapse came about due to technical error such as wrong filing of TDS statement, basis technical breach, there is no case for levy of late filing fee u/s 234E of the Act. It was not a case where the assessee has failed to file the TDS statement or there was delay in filing the TDS statement rather it was a case where a wrong TDS statement (in wrong Form) was filed originally and considering the same, the matter was decided by the Coordinate Bench and the said case is therefore distinguishable as in the instant case, there is an admitted delay in filing the TDS statement. 9. In the instant case, admittedly, there is a delay in filing the TDS statement and there is no allegation that the A.O. h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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