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TMI Blog2015 (12) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of delay. But the ld.First Appellate authority has dismissed the application by observing that the assessee failed to submit the TDS return in time, and thereafter, did not challenge the order of the DCIT, CPC, TDS in time. It suggests that assessee is a negligent entity. 3. With the assistance of the ld.representatives, we have gone through the record carefully. We find that in order to explain the delay, it was contended by the assessee that the papers were handed over to the clerk for submitting the appeal. But due to oversight, he did not go to the office of the CIT(A) for submitting the papers. When it came to the notice of the management, the appeals were filed immediately. After taking into consideration the explanation of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentical issues. The issue in dispute is squarely covered by the decision of the ITAT, Amristar Bench in the case of Sibia Healthcare Pvt. Ltd. VS. DCIT, ITA No,.90/Asr/2015, which has been followed by the ITAT, Ahmedabad Bench in the case of Indian Overseas Bank Vs. DCIT, Ghaziabad in ITA No.3271/Ahd/2014. The Tribunal has held that while processing the TDS return under section 200A, the AO was not authorized to make adjustment by raising the demand under section 234E also. The discussions made by the Tribunal are as under: "5. I find that the issue in appeal 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 - ITA No.90/Asr/2015, vide order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 200 or the proviso to subsection (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues. (2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be. (3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section (3) of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of tax or interest; (d) an intimation shall be prepared or generated and sent to the deductor specifying the sum determined to be payable by, or the amount of refund due to, him under clause (c); and (e) the amount of refund due to the deductor in pursuance of the determination under clause (c) shall be granted to the deductor: Provided that no intimation under this sub-section shall be 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, "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted to the deductor. 8. In effect thus, post 1st June 2015, in the course of processing of a TDS statement and issuance of intimation under section 200A in respect thereof, an adjustment could also be made in respect of the "fee, if any, shall be computed in accordance with the provisions of section 234E". 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of the enabling provision under section 200A, no such levy could be effected. As intimation under section 200A, raising a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 19th February 2014, such a levy could only have been made at best within 31st March 2015. That time has already elapsed and the defect is thus not curable even at this stage. In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees under section 234 E is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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