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TMI Blog2016 (10) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... .A. No. 4607/Mum/2015 - - - Dated:- 24-8-2016 - Shri B.R. Baskaran (AM) Shri Pawan Singh (JM) For The Assessee : Shri None For The Department : Shri B.S. Bist ORDER Per Bench:- In all these appeals, the solitary issue challenged by the assessee relates to the demand raised by the AO u/s 234E of the Act in the intimation processed u/s 200A of the Act prior to 01-06-2015. None appeared on behalf of the assessees. However, we notice that an identical issue was considered by the co-ordinate bench of the Tribunal in a bunch of cases named M/s Kash Realtors P Ltd Others (ITA No.4199/M/15 dated 27.07.16). Hence we proceed to dispose of these appeals ex-parte, without the presence of the assessees. For the sake of convenience, we extract below the entire order passed by the co-ordinate bench in the above said case:- In this bunch of 17 appeals, the sole issue involved is as to whether or not, for the period prior to 01.06.15, fees under section 234E of the Income Tax act, 1961 (hereinafter referred to as the Act) in respect of defaults in furnishing TDS statements, could be levied in intimation under section 200A of the Act. 2. In some of the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 200A before 01.06.15 providing for the adjustment in respect of levy of fees under section 234E while processing the TDS statements, hence in the absence of such an enabling provision, no such levy could be affected. The provision for making adjustments regarding fees leviable under section 234E has been introduced by way of amendment made vide Finance Act, 2015 w.e.f. 01.06.15 only. The Tribunal therefore held that the action of the AO in making adjustments with regard to the fees leviable under section 234E while processing the TDS statements under section 200A for the period prior to 1.6.2015, was not legally valid. It has therefore been contended on behalf of the assessees that the TDS statements filed by the assessee has to be processed in the manner as laid down in the provisions of section 200A as in force during the relevant period. That the levy of fees under section 234E of the Act, thus, cannot be a subject matter of process, while processing the statement under section 200A of the Act so far as the period prior to 01.06.15 is concerned. 6. The Ld. D.R., on the other hand, has relied upon the decision of the Hon ble Bombay High Court in the case of Rashmikant Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessees is not against the levy of fees under section 234E of the Act independently rather, the issue is that while processing the TDS statements under section 200A of the Act, whether or not, the fees leviable under section 234E can be adjusted therein? No doubt, the order passed under section 200A is an appealable order before the Ld. CIT(A) under section 246 of the Act (w.e.f. 1.7.2012). The appellate order of the Ld. CIT(A) passed under 250 of the Act is further appealable before this Tribunal under section 253 of the Act. Hence, we do not find any illegality in the course adopted by the assessees of invoking the appealable jurisdiction of this Tribunal for redressal of their grievance on this issue. 9. So far as the issue whether for the period prior to 01.06.15, such adjustment can be made while processing the statements under section 200A of the Act is concerned, we find that the Amritsar Bench of the Tribunal in the case of Sibia Healthcare Pvt. Ltd. vs. DCIT (supra) has held that in the absence of enabling provision under section 200A prior to 01.06.15 such a power was not vested with the AO (TDS). The said decision has been further followed by the Ahmedabad B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act provides for payment of the fee before delivery of statement under Section 200(3) of the Act. Therefore, the fee has to be paid by the assessee voluntarily before filing the statement under Section 200(3) of the Act and the assessing authority has no power to levy the fee. 5. On the contrary, Sh. P. Radhakrishnan, the Ld. Departmental Representative, submitted that Section 234E of the Act provides for payment of fee, if the assessee fails to deliver the statement as prescribed in Section 200(3) of the Act. Therefore, the Assessing Officer has every authority to levy fee either by a separate order or while processing the statement under Section 200A of the Act. 6. We have considered the rival submissions on either side and perused the relevant material on record. Section 200A of the Act provides for processing of the statement of tax deducted at source by making adjustment as provided in that Section. For the purpose of convenience, we are reproducing the provisions of Section 200A of the Act:- 200A. (1) Where a statement of tax deduction at source or a correction statement has been made by a person deducting any sum (hereafter referred to in this section as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses shall be 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 determi ned 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. Therefore, it is obvious that prior to 01.06.2015, there was no enabling provision in Section 200A of the Act for making adjustment in respect of the statement filed by the assessee with regard to tax deducted at source by levying fee under Section 234E of the Act. The Parliament for the first time enabled the Assessing Officer to make adjustment by levying fee under Section 234E of the Act with effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rous imprisonment for a term which may be extended to ten years and also liable to fine. For the purpose of convenience, we are reproducing Section 396 of Indian Penal Code, hereunder:- 396. D acoity with murder - If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Similarly, Section 408 of Indian Penal Code provides for criminal breach of trust by a clerk or servant. In addition to imprisonment which may extend to seven years, the accused who is found to be guilty shall also be liable to fine. Similarly, the other provisions of Indian Penal Code also say that in addition to imprisonment, the accused shall be liable to pay fine. The language used by the Parliament in Indian Penal Code is shall also be liable to fine . This means that the Magistrate or Sessions Judge, who tries the accused for an offence punishable under the provisions of Indian Penal Code, in addition to punishment of imprisonment, shall also levy fine. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is deleted. However, the other adjustment made by the Assessing Officer in the impugned intimation shall stand as such. 12. In the result, all the appeals filed by the assessees are allowed as indicated above. 10. Respectfully following the above proposition laid by the Chennai Bench of the Tribunal in the case of Smt. G. Indhirani Others vs. DCIT, CPC-TDS (supra) after duly considering the decision of the Amritsar Bench of the Tribunal in the case of Sibia Healthcare Pvt. Ltd. vs. DCIT (supra), we hold that the AO (TDS) in the above captioned appeals has exceeded his jurisdiction in making adjustments of fees leviable under section 234E while processing the TDS statements under section 200A of the Act. Therefore, the adjustments made by the lower authorities of fees leviable under section 234E while processing the intimation under section 200A are hereby set aside. 11. With the above observations, the impugned orders of the Ld. CIT(A) are set aside and the issue is treated as decided in favour of the assessees. 12. In the result, all the above captioned appeals are treated as allowed. 2. In the instant cases also, the intimation u/s 200A has been processed p ..... 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