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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 ..... lete the impugned levy of fee under section 234E of the Act. - Decided in favour of assessee. - I.T.A. Nos.3227 & 3228/Ahd/2015 - - - Dated:- 10-2-2016 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER For The Appellant : Shri Manish M.Rajvaidya, CA For The Respondent : Shri B. Panda, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : Both the appeals have been filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)-8, Ahmedabad dated 03.09.2015 for Assessment Year 2013-14. 2. In these appeals, the assessee has raised following common grounds (except quantum):- 1. WRONGLY CHARGING LATE FILING FEES U/S. 234E OF THE I. T. ACT OF ₹ 5.500/- FOR FINANCIAL YEAR 2012-13 (QUARTER - 2) (and in ITA No.3228/Ahd/15 of ₹ 9,375/- for Quarter-3) WHICH IS BEFORE THE PERIOD BEFORE 01-06-2015. a. The Learned A.O. and the Learned CIT(A) has erred in law and on facts while levying the late filing fees u\s. 234E of ₹ 5,500/- (and in ITA No.3228/Ahd/15 of ₹ 9,375/-) on the appellant in the intimation issued u/s. 200A of the I.T. Act, 1961 dated 09-12-2013. The Learned A.O. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ila LP school vs. Union of India (WP (C) 31498 / 2013 (J)) Hon'ble Kerala High Court, (b) Adithya Bizor P Solutions vs. Union of India (WP No. 6918-6938/2014 (TIT)) Hon'ble Karnataka High Court, (c) Om Prakash Dhoot vs. Union of India (WP No. 1981 of 2014) Hon'ble Rajasthan High Court and (d) Rashmikant Kundalia vs. Union of India (WP No. 771 of 2014) Hon'ble Bombay High Court. b. Without prejudice to whatever stated hereinabove the appellant would like to submit as under:- The Learned A.O. and the Learned CIT(A) has erred in law and on facts while not considering that as per the provision of Sec.234E have been made applicable w.e.f. 1st July, 2012. it states that Amount of late fee shall be paid before delivering a TDS statement , it means that any late filing fee should have been deposited just at the time of delivering TDS statement and not later than this. The authorized TIN- NSDL centre which accepted the TDS statement also accepted these without late fee, as well as the software utility of the TDS department itself accepted these without late fee. Accordingly, it is to be submitted that once the TDS statement has been accepted wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 requires adjudication on a very short legal issue, within a narrow compass of material facts, we are proceeding to dispose of this appeal on merits. 5. We may produce, for ready reference, section 234E of the Act, which was inserted by the Finance Act 2012 and was brought into effect from 1st July 2012. This statutory provision is as follows: 234E. Fee for defaults in furnishing statements (1) Without prejudice to the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said subsection. 7. By way of Finance Act 2015, and with effect from 1st June 2015, there is an amendment in Section 200A and this amendment, as stated in the Finance Act 2015, is as follows: In section 200A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 el ..... X X X X Extracts X X X X X X X X Extracts X X X X
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