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2016 (11) TMI 1124 - AT - Income TaxLate filing fee u/s. 234E while passing intimation u/s. 200A - intimation u/s. 200A has been processed prior to 1.6.2015 - Held that - 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. See case of M/s. Kash Realtors Pvt. Ltd & Others 2016 (8) TMI 63 - ITAT MUMBAI
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Legality of charging late filing fee under Section 234E of the Income Tax Act while processing intimation under Section 200A for the period prior to 1.6.2015. Detailed Analysis: 1. Condonation of Delay in Filing the Appeal The appeals were barred by a limitation of 12 days. The assessee filed an affidavit explaining the reasons for the delay. Upon reviewing the petition for condonation and the affidavit, the Tribunal found a reasonable cause for the short delay in filing the appeals. Consequently, the delay was condoned, and the appeals were admitted. 2. Legality of Charging Late Filing Fee under Section 234E The primary grievance of the assessee was that the CIT(A) erred in sustaining the Assessing Officer's order of charging a late filing fee under Section 234E while passing intimation under Section 200A. Background: - The Assessing Officer charged a late filing fee under Section 234E in respect of quarterly TDS statements in Form No. 26Q. - The assessee appealed to the CIT(A), who dismissed the appeal, citing the decision of the Bombay High Court in Rashmikant Kundalia Vs Union of India, which upheld the constitutional validity of Section 234E. Assessee's Argument: - The assessee's counsel argued that clauses (c) to (f) of sub-section (1) of Section 200A were substituted by the Finance Act, 2015, effective from 1.6.2015. These clauses provided for the computation of fees in accordance with Section 234E. - Prior to 1.6.2015, there was no enabling provision in Section 200A for the levy of fees under Section 234E. Thus, no fee could be charged under Section 234E before this date. - The counsel cited decisions from the Chennai Bench (Smt. G. Indhirani Vs DCIT) and the Amritsar Bench (Sibia Healthcare (P) Ltd Vs DCIT) to support this argument. Revenue's Argument: - The Departmental Representative supported the orders of the lower authorities and relied on the decision of the Bombay High Court in Rashmikant Kundalia Vs Union of India. Tribunal's Findings: - The Tribunal reviewed the rival submissions, the orders of the lower authorities, and the cited decisions. - It noted that the issue was similar to that in a bunch of appeals (M/s. Kash Realtors Pvt. Ltd & Others), where the Co-ordinate Bench held that for the period prior to 1.6.2015, fees under Section 234E could not be levied in intimation under Section 200A. - The Tribunal emphasized that the enabling provision for the levy of fees under Section 234E while processing TDS statements under Section 200A was introduced only from 1.6.2015. - The Tribunal referenced the Amritsar Bench's decision in Sibia Healthcare Pvt. Ltd. and the Chennai Bench's decision in Smt. G. Indhirani, which both concluded that adjustments for fees under Section 234E could not be made under Section 200A before 1.6.2015. - The Tribunal also distinguished the Bombay High Court's decision in Rashmikant Kundalia, noting that it upheld the constitutional validity of Section 234E but did not address whether fees under Section 234E could be adjusted while processing TDS statements under Section 200A for the period before 1.6.2015. Conclusion: - The Tribunal held that the Assessing Officer exceeded his jurisdiction by levying fees under Section 234E while processing the statement under Section 200A before 1.6.2015. - The Tribunal set aside the demand raised under Section 234E in the intimation processed under Section 200A for the period prior to 1.6.2015. - The appeals filed by the assessee were allowed. Order Pronouncement: - The order was pronounced in the open court on 23rd September 2016.
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