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TMI Blog2017 (3) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... imation u/s 200A of the Income Tax Act, 1961 (in short 'the Act') dated 23.12.2013 issued by DCIT, CPC (TDS), Ghaziabad, U.P for the 4th quarter of financial year 2012-13. In brief, the relevant facts are that the assessee filed its quarterly TDS statement in the prescribed Form-24Q for the 4th quarter of financial year 2012-13 on 20.7.2013, which was otherwise due on 15.5.2013. Thus, the quarterly statement was filed belatedly by 66 days. The Assessing Officer processed the return and sent an intimation u/s 200A of the Act wherein he, inter-alia, determined late fee of Rs. 13,200/- in terms of Sec. 234E of the Act for the delay in filing of quarterly TDS statement. The assessee preferred an appeal before the CIT(A), inter-alia, raising various points. One of the pertinent points was that Sec. 200A of the Act inserted w.e.f. 1.4.2010 did not contain any reference to the provisions of Sec. 234E of the Act upto 1.6.2015 and, therefore, in the impugned order dated 23.12.2013 passed u/s 200A of the Act, levy u/s 234E of the Act could not have been made. On this point, assessee also relied upon the decision of the Amritsar Bench of Tribunal in the case of Sibia Healthcare Private Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A in the light and scope of the provisions of section 200A. The Tribunal further observed that since there was no enabling provision under section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le jurisdiction under article 226/227 of the Constitution of India, as the case may be. 8. However, in the cases before us, the grievance of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el pointed out that the assessee is liable to pay fee. However, it does not empower the Assessing Officer to levy the fee. Section 234E(3) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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." 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 200A as confirmed by the CIT(Appeals) in so far as levy of fee under Section 234E is set aside and fee levied 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 ofthe 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." Ostensibly, the Bench has held that the impugned order passed by the Assessing Officer u/s 200A of the Act even prior to 1.6.2015 is an appealable order. Thus, the said objection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue on constitutional validity of section 234E of the Act. We have already referred to the decision of Hon'ble Bombay High Court in Rashmikant Kundalia Vs. Union of India (supra) in this regard, wherein the constitutional validity of section 234E of the Act has been upheld." The Pune Bench has duly noted that the Hon'ble Karnataka High Court held that intimation u/s 200A of the Act raising demand prior to 1.6.2015 of the late fee envisaged u/s 234E of the Act is not valid. In view of the aforesaid precedents, in our view, there is no justification for the impugned orders of income-tax authorities. 8. Insofar as the reliance placed by the ld. DR on the judgment of the Hon'ble Rajasthan High Court in the case of Dundlod Shikshan Sansthan (supra) is concerned, the same, in our view, does not help the Revenue. Firstly, the said decision is primarily with regard to the constitutional validity of the late fee chargeable in pursuance to Sec. 234E of the Act, which is not the subject matter of controversy before us; secondly, it is noticeable that even if the judgment of the Hon'ble Rajaasthan High Court supports the levy of late fee u/s 234E of the Act in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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