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TMI Blog2018 (6) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 234E of the Act. - Decided in favour of assessee. - ITA No. 2409/Ahd/2016 - - - Dated:- 18-6-2018 - Shri Pramod Kumar, Accountant Member For The Appellant : Aseem Thakkar For The Respondent : VK Singh ORDER 1. By way of this appeal, the assessee-appellant has challenged correctness of the order dated 18th July 2016 passed by the by the CIT(A)-8, Ahmedabad, in the matter of levy of late filing fees under section 234E, in the course of processing under section 200A of the Income-tax Act, 1961, for the assessment year 2013-14. 2. The grievances raised by the assessee are as follows:- 1. The learned Commissioner of Income Tax (Appeals) has erred in dismissing the appeal for alleged late filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the IT Act, 1961. 2. I have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 3. The period of delay in question is prior to 1st June 2015, i.e. prior to the period in which the relevant amendment in section 200A was made. On these facts, there is no dispute that the issue is squarely covered in favour of the assessee by the Division Bench decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT - ITA No.90/Asr/2015, vide order dated 9th June, 2015, wherein the Division Bench has inter alia observed as under :- 4. We have heard the rival contentions, perused the material on record and duly consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fails to deliver or cause to be delivered a statement within the time prescribed in sub-section (3) of section 200 or the proviso to subsection (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues. ( 2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be. ( 3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section (3) of section 200 or the proviso to subsection (3) of section 206C. ( 4) The provisions of this section shall apply to a statement referred to in sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. In effect thus, post 1st June 2015, in the course of processing of a TDS statement and issuance of intimation under section 200A in respect thereof, an adjustment could also be made in respect of the fee, if any, shall be computed in accordance with the provisions of section 234E . There is no dispute that what is impugned in appeal before us is the intimation under section 200A of the Act, as stated in so many words in the impugned intimation itself, and, as the law stood, prior to 1st June 2015, there was no enabling provision therein for raising a demand in respect of levy of fees under section 234E. While examining the correctness of the intimation under section 200A, we have to be guided by the limited mandate of Section 200A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of the enabling provision under section 200A, no such levy could be effected. As intimation under section 200A, raising a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 19th February 2014, such a levy could only have been made at best within 31st March 2015. That time has already elapsed and the defect is thus not curable even at this stage. In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees under section 234 E is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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