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TMI Blog2015 (11) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... fan Iqbalbhai Ajmerwala) pertaining to Assessment Year (AY) 2014- 15. Since common issues are involved in both these appeals, these were heard together and are being disposed of by this consolidated order for the sake of convenience. 2. First, we take up ITA No.2296/Ahd/2015 for AY 20014-15 as the lead case, since similar facts are involved in both the cases. 2.1. In Assessee s appeal in ITA No.2296/Ahd/2015 for AY 2014-15 (in the case of Tanish Industries Pvt.Ltd.), the Assessee has raised the following grounds of appeal:- The order of learned Commissioner of Income-tax(Appeals) - 8, Ahmedabad in confirming levy of fees u/s 234E is bad in law on the following grounds; (1) There is no inherent power with A.O. (DCIT- CPC Cell - TDS) u/s 200A of the Act to levy and charge fees u/s 234E on their own in absence of specific power conferred on them. Such power is absent in said section. No one can assume such power suo motto. (2) There is no provision u/s 234E that after filing TDS return, late filing fee can be demanded. (3) There is no provision u/s 204 r.w.s. 234E for making person/ officer responsible for payment of late filing fees of late TDS return. There is no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 9th June, 2015, wherein the Division Bench has inter alia observed as under :- 4. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. In addition to his argument 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 High Court in the case of Rashmikant Kundalia Vs Union of India [WP No. 771 of 2014], granting stay on the demands raised in respect of fees under section 234E. The full text of these decisions were not produced before us. However, as admittedly there are no orders from the Hon ble Courts above retraining us from our adjudication on merits in respect of the issues in this appeal, and as, in our humble understanding, this appeal require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined 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 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 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 centrali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ums deductible as computed in the statement . - Section 200A(1)(b) 9. No other adjustments in the 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 under this intimation in the light of the scope of the section 200A. Learned CIT(A) has not done so. He has justified the levy of fees on the basis of the provisions of Section 234E. That is not the issue here. The issue is whether such a levy could be effected in the course of intimation under section 200A. The answer is clearly in negative. No other provision enabling a demand in respect of this levy has been pointed out to us and it is thus an admitted position that in the absence of the enabling provision under section 200A, no such levy could be effected. As intimation under section 200A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein following grounds have been raised:- The order of learned Commissioner of Income-tax(Appeals) - 8, Ahmedabad in confirming levy of fees u/s 234E is bad in law on the following grounds; (1) There is no inherent power with A.O. (DCIT- CPC Cell - TDS) u/s 200A of the Act to levy and charge fees u/s 234E on their own in absence of specific power conferred on them. Such power is absent in said section. No one can assume such power suo motto. (2)There is no provision u/s 234E that after filing TDS return, late filing fee can be demanded. (3)There is no provision u/s 204 r.w.s. 234E for making person/ officer responsible for payment of late filing fees of late TDS return. There is no provision u/s 204 for paying TDS from salary and not late return fees. (4)Late fees demand cannot be raised by processing TDS return because section 200A do not provide default for payment of late fees u/s 234E. (5)The assessee craves for liberty to amend, modify and add any grounds of appeal or file additional evidences. 8.1. In this case, the grounds and facts are identical to that of Tanish Industries Pvt.Ltd.(supra) which has been decided by us in favour of the assessee, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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