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TMI Blog2016 (11) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... or The Revenue : Shri N. Sathya Moorthy ORDER PER C.N. PRASAD, JM: These two appeals are filed by the assessee against the orders of the Ld. CIT(A)-59, Mumbai dated 22.04.2015 pertaining to assessment year 2013-14 2014-15. 2. The only grievance of the assessee in both these appeals is that the Ld. CIT(A) erred in sustaining the order of the Assessing Officer in charging late filing fee u/s. 234E of the Act while passing intimation u/s. 200A of the Act. 3. The appeals are barred by limitation by 12 days. The assessee has filed an Affidavit explaining the reasons as to why the appeal could not be filed in time. On going through the petition for condonation and affidavit, we find that there is reasonable cause for short delay in filing appeals. Hence the delay is condoned and appeals are admitted. 4. Brief facts are that the Assessing Officer while passing intimation u/s.200A of the I.T. Act charged late filing fee u/s. 234E in respect of quarterly statements of TDS in Form No. 26Q. 5. The assessee preferred an appeal before the Ld. CIT(A). However, the Ld. CIT(A) dismissed the appeal of the assessee holding that the issue is covered by the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is after 01.07.12, but prior to 01.06.15. These dates are relevant because 1.7.2012 is the date of insertion of section 234E into the Income Tax Act, 1961 whereas 1.6.2015 is the date of amendment/substitution of clause (c) to section 200A vide which it has been provided that fees payable under section 234E can be adjusted while processing intimation under section 200A w.e.f. 1.6.2015. 4. Now coming to the facts of these cases, in the course of the processing of the TDS returns, the Assessing Officer (TDS) [hereinafter referred to as the AO(TDS)] raised demand in each of the above cases by way of an intimation issued under section 200A of the Act for levy of fees under section 234E for delay in filing of TDS statement beyond the period stipulated as per the provisions of section 200(3) of the Act. Aggrieved by this levy of fees, the respective assessees carried the matter in appeal before the Ld. CIT(A) but without any success. Being aggrieved by the orders of the Ld. CIT(A), the assessees in the above captioned appeals have come in appeal before us. 5. We have heard the rival contentions and have also perused the material on record. The contention of the Ld. respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed his jurisdiction while making adjustment of the fees leviable under section 234E for non compliance/delay in filing the TDS statements as provided under section 200(3) of the Act. 7. We have heard the rival contentions and have also gone through the case laws cited before us. So far as the reliance of the Revenue on the decision of the Hon ble Bombay High Court in the case of Rashmikant Kundalia vs. Union of India (supra) is concerned, we find that in the said case the constitutional validity of section 234E was challenged. The Hon ble Bombay High Court has upheld the validity of the section 234E. However, the issue whether the fees leviable under section 234E can be adjusted while processing the TDS statements under section 200A of the Act in relation to the period prior to 01.06.15, has neither been raised before the Hon ble Bombay High Court nor has been adjudicated. Hence, the reliance of the Revenue on the decision of the Hon ble Bombay High Court in the case of Rashmikant Kundalia vs. Union of India (supra) so far as the issue is concerned, is of no help to the Revenue. One of the contentions raised before the Hon ble Bombay High Court was that under the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 200A, in the absence of enabling provision for the period before 01.06.15, the levy of fee under section 234E while processing the TDS statements was not permissible to the AO (TDS). However, the co-ordinate Chennai Bench of the Tribunal has also examined the other contention of the Revenue that section 234E is an independent section and the fees can be levied by the AO (TDS), independent of the provisions of section 200A, for the default/delay in filing the TDS statements as prescribed under section 200(3) of the Act. The Tribunal, considering the above submissions, held that if the assessee fails to pay the fees before filing the statement under section 200(3) of the Act, the Assessing Authority may pass a separate order levying of such a fee under section 234E of the Act, if the same is not barred by time limit or otherwise under any other provisions of law. The Assessing Authority, however, could not adjust the fees leviable under section 234E while processing the TDS statement under section 200A of the Act. However, after 01.06.15 the Assessing Authority is well within his limit to levy fee under section 234E of the Act even while processing the statement under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor shall be determined 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, art 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 subsection (1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that the fee levied by the Assessing Officer under Section 234E of the Act while processing the statement of tax deducted at source is beyond the scope of adjustment provided under Section 200A of the Act. Therefore, such adjustment cannot stand in the eye of law. 8. The next contention of the assessee is that Section 234E of the Act says that the assessee shall be liable to pay by way of fee, therefore, the assessee has to voluntarily pay the fee and the Assessing Officer has no authority to levy fee. The argument of the Ld.counsel for the assessee is very attractive and fanciful. However, we do not find any substance in that argument. When Section 234E clearly says that the assessee is liable to pay fee for the delay in delivery of the statement with regard to tax deducted at source, the assessee shall pay the fee as provided under Section 234E(1) of the Act before delivery of the statement under Section 200(3) of the Act. If the assessee fails to pay the fee for the periods of delay, then the assessing authority has all the powers to levy fee while processing the statement under Section 200A of the Act by making adjustment after 01 .06.2015. However, prior to 01 .06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the contention of the Ld.counsel that merely because the Parliament has used the language he shall be liable to pay by way of fee , the assessee has to pay the fee voluntarily and the Assessing Officer has no authority to levy fee could not be accepted. No one would come forward to pay the fee voluntarily unless there is a compulsion under the statutory provision. The Parliament welcomes the citizens to come forward and comply with the provisions of the Act by paying the prescribed fee before filing the statement under Section 200(3) of the Act. However, if the assessee fails to pay the fee before filing the statement under Section 200(3) of the Act, the assessing authority is well within his limit in passing a separate order levying such a fee in addition to processing the statement under Section 200A of the Act. In other words, before 01.06.2015, the assessing authority could pass a separate order under Section 234E levying fee for delay in filing the statement under Section 200(3) of the Act. However, after 01 .06.2015, the assessing authority is well within his limit to levy fee under Section 234E of the Act even while processing the statement under Section 200A an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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