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TMI Blog2016 (11) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) (a) The Ld. CIT(A) erred by following the Judgement of Bombay High Court's dismissing, the Writ Petition Filed challenging the Jurisdiction or Competence for levy of Late Filing Fee U/S 234E. However for the assessee in this case is altogether different, as per ground No.2 in the grounds of appeal before his authority, is with regards to Time of the TDS Statement to be filed by the deductor which was dealt in the speaking order passed by his judicial authority. (b) Under the provisions of sub-section (3) of Section 234 E, Fee shall have to be paid at the time of delivering the TDS Statement before the concerned authority. This point was never considered by the Ld.CIT(A) while deciding the issue of Late Fee U/S 234E. (c) Once the said TDS Statements are filed without Payment of Fees U/S 234E, no subsequent recover can be made by the authority, by issuing the Notice of Demand U/S 156. (d) The said provision of Section 200A. that prevailed prior to changes in Finance Act, 2015, does not permit processing of TDS statement for 'default in payment of Late Fees' except i) Any arithmetical error, or incorrect claim, or ii) default in payment of Interest and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resenting the assessee relied upon the judgments passed by judicial authorities wherein the issue with regard to the levy of fee u/s 234 E of the Act was decided. Following judgments have been referred by ld. AR in ITA Nos.1019,1020 &1021/Mds/2015 in the case of Smt. G. Indhirani vs. The Deputy Commissioner of Income Tax for A.Y. 2013-14, ITA No.90/Asr/2015 in the case of Sibia Healthcare Private Limited vs. Dy. CIT in the A.Y. 2013-14 and Writ Petition No.771 of 2014 in the case of Mr Rashmikant Kundalia and another vs. Union of India and others. 6. First of all we refer to the order passed by Hon'ble ITAT Chennai Bench in ITA Nos.1019 to 1021/Mds/2015 and 1089 to 1092/Mds/2015 wherein identical question was in dispute and the Hon'ble ITAT in the afore mentioned ITA had decided the said issue. The operative para is reproduced below for the sake of reference: "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 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the amendment made in Section 200A by the Finance Act, 2015 as under:- 'In section 200A of the Income-tax Act, in sub-section (1), for clauses (c) to (e), the following clauses shall be substituted with effect from the pt 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Indian Penal Code. Section 396 of Indian Penal Code provides for punishment for dacoity with murder. The punishment is imprisonment for life or rigorous 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. Dacoity with murder - If anyone of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, everyone 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 each 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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