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TMI Blog2016 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The Learned A.O. and the Learned CIT(A) has also erred in law and on facts while not considering that vide Finance Act, 2015 clause (c) to (e) of subsection (1) of section 200A which is the operating section for processing the statements of Tax Deduction at source has been substituted w.e.f. 01-06-2015 and accordingly after 01-06-2015 in the course of processing of a TDS statement and issuance of intimation under section 200A in respect thereof, adjustment could also be made in respect of the "fees, if any, shall be computed in accordance with the provision of section 234E". Thus, the Learned A.O. and the Learned CIT(A) has erred in law and on facts while not considering that the law stood, prior to 01-06-2015, there was no enabling provision therein for raising a demand in respected of levy of fees under section 234E and prior to 01-06-2015 there was limited mandate of section 200A, which permitted computation of amount recoverable from, or payable to, the tax deductor after making the following adjustment: (a) after making adjustment on account of "arithmetical errors" and "incorrect claims apparent from any information in the statement" (b) after making adjustment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late fee, then such late fee cannot be recovered later on. As well as that as per the provision of Sec. 234E(4) which states that late fee is applicable for "TDS statement which is to be delivered or caused to delivered for tax deducted at source or tax collect at source, as the case mat be, on or after 1st July, 2012". Accordingly, late fee cannot be recovered for TDS statements, if not collected at the time of delivering IDS statement to the department. As well as that as per provision of section 204 specifically says that "for the purposes of Sec. 190 to Sec. 203 and for Sec. 285 of the act the following persons would be responsible", so it is clear that for the purpose of Sec. 234E none of the person has been made responsible, therefore if any late fee is due and not deposited alongwith the IDS statement none can be held responsible to deposit it. Under the circumstance the late filing fees raised vide intimation u/s. 200A of the IT. Act, 1961 for Rs. 9,375/- for financial year 2012-13 (quarter - 3) is bad in law and requires to be squashed. The appellant reserves it right to add, amend, alter, substitute or modify all or any grounds stated hereinabove as the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 200 or the proviso to subsection (3) of section 206C. (4) The provisions of this section shall apply to a statement referred to in sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after the 1st day of July, 2012. 6. We may also reproduce the Section 200A which was inserted by the Finance Act 2009 with effect from 1st April 2010. This statutory provision, as it stood at the relevant point of time, was as follows: 200A: Processing of sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substituted with effect from the 1st day of June, 2015, namely:- "(c) the fee, if any, shall be computed in accordance with the provisions of section 234E; (d) the sum payable by, or the amount of refund due to, the deductor shall be determined after adjustment of the amount computed under clause (b) and clause (c) against any amount paid under section 200 or section 201 or section 234E and any amount paid otherwise by way of tax or interest or fee; (e) 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 (d); and (f) the amount of refund due to the deductor in pursuance of the determination under clause (d) shall be 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 levy of fee under section 234E of the Act. The assessee gets the relief accordingly."
4. The Coordinate Bench of this Tribunal (ITAT Ahmedabad Bench "SMC" Ahmedabad) in the case of Lions Club of North Surat Charitable Trust vs. ITO in ITA Nos.3274, 3275 & 3276/Ahd/2014 for AY 2013-14 vide order dated 03/09/2015 had allowed the assessee's appeals by following the decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Ltd.a vs. DCIT(supra).
5. Since there is no change into the facts and circumstances in the present case is pointed out by the Revenue, therefore respectfully following the aforesaid decision(s) of Coordinate Bench, we direct the AO to delete the late filing fee of TDS return u/s.234E of the Act in both the appeals. Thus, grounds raised in the assessee's appeals are allowed.
6. In the result, both the appeals of the Assessee i.e. ITA Nos.3227 & 3228/Ahd/2015 for AY 2013-14 are allowed.
Order pronounced in the Court on Wednesday, the 10th day of February, 2016 at Ahmedabad. X X X X Extracts X X X X X X X X Extracts X X X X
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