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TMI Blog2017 (8) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Ld.CIT(A) Mumbai 59, dated 06.04.2015 in sustaining the levy of fees u/s 234E of the Act while processing quarterly TDS statements and while passing the intimation u/s 200A of the Act. 2. In spite of issue of notices on several occasions none appeared nor any adjournment was sought by the assessee. Further the issue in all these appeals is decided by the Coordinate Bench in a batch of appeals in the case of Concept Management Consulting Limited v. DCIT in ITA.No.4428/MUM/2015 to ITA.No.4437/Mum/2015 dated 24.08.2016 and therefore we proceed to dispose off these appeals on hearing the Ld.DR. 3. The Ld.DR placing reliance on the decision of the Hon ble Bombay High Court in the case of Rashmikant Kundalia v. Union of India [373 ITR 268] submits that levy of fee u/s 234E is constitutionally valid. He further submits that when there is delay in filing TDS statements fee u/s 234E is attracted for the delay and since in all these cases there is a delay in filing the TDS statements the Assessing Officer is perfectly justified in levying fee u/s 234E of the Act while passing the intimation u/s 200A of the Act. 4. We have heard the Ld.DR, perused the orders of the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Counsels for the assessees has been that this issue has already been considered by the Amritsar Bench of the Tribunal in the case of Sibia Healthcare Pvt. Ltd. vs. DCIT ( 2015) 171 TTJ (ASR) 0145 wherein the Amritsar Bench of the Tribunal has held that since the intimation under section 200A is an appealable order before the Ld. CIT(A) (w.e.f. 1.7.2012) under section 246A(a) and therefore the Ld. CIT(A) could have examined the validity of the adjustments made under the intimation under section 200A 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 abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of the Act, no appeal is provided for or from an arbitrary order passed under section 234E of the Act. The Hon ble Bombay High Court observed that a right of appeal is not a matter of right but is a creature of statute and if the legislature deems it fit not to provide a remedy of appeal, so be it. The Hon ble Bombay High Court has observed that even in such a scenario, the aggrieved party is not left remediless rather such aggrieved person can always approach the Hon ble High Court in extraordinary equitable 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 200A and making adjustment. The relevant part of the decision of the Chennai Bench of the Tribunal for the sake of completeness is reproduced as under: 4. The Ld.counsel invited our attention to Section 234A of the Act and submitted that when an assessee fails to deliver the statement within the prescribed time, the assessee is liable to pay by way of fee a sum of Z200/- for every day during such a period the failure continues. Referring to the word used in the section 234E he shall be liable to pay , the Ld.counsel 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- ( 1) 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), 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 sub-section. 7. The Assessing Officer cannot make any adjustment other than the one prescribed above in Section 200A of the Act. By Finance Act, 2015, with effect from 01.06.2015, the Parliament amended Section 200A by substituting sub-section (1) of clauses (c) to (e). For the purpose of convenience, we are reproducing 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 followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 01.06.2015, the Assessing Officer had every authority to pass an order separately levying fee under Section 234E of the Act. What is not permissible is that levy of fee under Section 234E of the Act while processing the statement of tax deducted at source and making adjustment before 01.06.2015. It does not mean that the Assessing Officer cannot pass a separate order under Section 234E of the Act levying fee for the delay in filing the statement as required under Section 200(3) of the Act. 9. The contention of the assessee can also be examined in the light of the provisions of Indian Penal Code. Section 396 of Indian Penal Code provides for punishment for dacoity with murder. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing 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 and making adjustment. 11. In view of the above discussion, this Tribunal is of the considered opinion that the Assessing Officer has exceeded his jurisdiction in levying fee under Section 234E while processing the statement and make adjustment under Section 200A of the Act. Therefore, the impugned intimation of the lower authorities levying fee under Section 234E of the Act cannot be sustained in law. However, it is made clear that it is open to the Assessing Officer to pass a separate order under Section 234E of the Act levying fee provided the limitation for such a levy has not expired. Accordingly, the intimation under Section 200A as confirmed by the CIT(Appeals) i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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