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TMI Blog2018 (10) TMI 1638X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed authority vested in such authority only by way of substitution of clause (c) to section 200A (1) of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. Since, prior to said substation the Assessing Officer had no authority to charge the fees under section 234E of the Act while issuing intimation under section 200A of the Act and henceforth levy of fees u/s 234E in the case is without authority." 2. The Coordinate Bench has earlier passed an order dated 17.4.2017 and thereafter, pursuant to misc. application filed by the assessee, the Bench has recalled the earlier order vide its order dated 21.8.2018 and hence, the present appeal has come up for adjudication. 3. At the outset, it is noted that there has been a delay in filing these appeals. In its condonation petition, the assessee has submitted that the concern employee who was responsible for TDS return and filing appeals against the orders related to TDS matter was unavailable for 4 months starting 1st August, 2016 and he came back on 1st December, 2016 and thereafter, the assessee has filed the subject appeal. It was submitted that even though the order of the ld. CIT(A) was received by the company on 15.06.2016. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has contended that prior to 01.06.2015, there was no enabling provisions in section 200A of the Act for making adjustment in respect of statement filed by the assessee with regard to TDS by levying fee u/s 234E of the Act. The ld. CIT(A) however, referring to the decision of the Hon'ble Rajasthan High Court in case of M/s Dundlod Shikshan Sansthan v. Union of India [2015] 63 taxmann.com 243 and others vide order dated 28.07.2015 has held that there is no valid reason or justification to interfere with the compensatory fee imposed in late filing of the TDS return. Accordingly, the demand raised by the AO for late filing fee u/s 234E was confirmed. Now, the assessee is in appeal before us. 7. During the course of hearing, the ld. AR submitted that provisions of Section 200A of the IT Act, 1961, inserted w.e.f. 1.4.2010 are special provisions for processing of the TDS statements. The section sets out some exhaustive adjustments, which can be made while processing the statement. 7.1 Section 234E has been inserted by Finance Act, 2012 w.e.f. 1st July, 2012 which provides for levy of Fee for delay in furnishing TDS Statement. Hence, from 1st July, 2012 onwards, a fee can be levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan High Court. 7.8 It was further submitted that the assessee's case is squarely covered by the undernoted judgments of Hon'ble ITAT Jaipur, which have also considered the decision of Hon'ble Rajasthan High Court in the case of Dundlod Shikshan Sansthan (supra) and have decided in the favour of the assessee. Relevant extracts has been set out here for your convenience. * M/s Mentor India Limited vs. DCIT - ITA No.738/JP/2016 "..We find that the Hon'ble Jurisdictional High Court in the case of Dundlod Shikshan Sansthan Vs. Union of India (supra) has ITA 738/JP/2016 & Ors. ITAs_ M/s Mentor India Ltd. Vs DCIT with other 10 cases 7 also considered the decision of the Hon'ble Bombay High Court in the case of Rashmikant Kundalia Vs. Union of India (2015) 229 Taxman 596 wherein the Hon'ble High Court has decided the nature of demand. The Hon'ble High Court has held that Section 234E of the Act is not punitive in nature but a fee which is a fixed charge for the extra service which the department has to prove due to the late filing of the TDS statements. Hence from both the decisions relied upon by the ld. DR, the issue of power of imposing late fee is not decided but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Association vs. DCIT [2016] 74 taxmann.com 6 (Pune - Trib.) who on placing reliance on the decision of Hon'ble Karnataka High Court in Writ Appeal Nos.2663- 2674/2015(T-IT) in Fatheraj Singhvi v. Union of India [2016] 73 taxmann.com 252 has held that prior to 1-6-2015, AO did not have power to charge fees under section 234E while processing TDS returns. Further the Hon'ble Court has held that Hon'ble Bombay High Court in the case of Rashmikant Kundalia (supra), has not upheld the applicability of section 234E of the Act by the Assessing Officer while processing TDS statement filed by the deductor prior to 01.06.2015. Relevant extract has been set out here for the sake of your convenience: "..30. The Hon'ble Bombay High Court in Rashmikant Kundalia's case (supra) has upheld the constitutional validity of said section introduced by the Finance Act, 2015 w.e.f. 01.06.2015 but was not abreast of the applicability of the said section 234E of the Act by the Assessing Officer while processing TDS statement filed by the deductor prior to 01.06.2015. In such scenario, we find no merit in the plea of learned CIT-DR that the Hon'ble Bombay High Court in Rashmikant Kundalia& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed and intimation under section 200A was issued vide order dated 15.12.2013 much prior to the amendment to section 200A of the Act w.e.f. 1.6.2015 empowering the Assessing officer levying the fees under section 234E of the Act. It is therefore not a case of continuing default where the assessee has defaulted in furnishing the TDS statement even after 1.6.2015 and thereafter, the demand for payment of fees under section 234E has been raised by the Assessing officer. In case of Fatheraj Singhvi (supra), the Hon'ble Karnataka High Court has held that the provisions of amended section 200A are prospective in nature. Further, the decision of the Hon'ble Rajasthan High Court in case of M/s. Dundlod Shikshan Sansthan and Others (supra) as relied by ld. CIT (A) is in the context of validity of section 234E, but not in the context of power of AO for levy of fee under section 234E prior to 1.6.2015. In view of the above, the Assessing Officer while processing the TDS statements for the period prior to 01.06.2015, was not empowered to charge fees under section 234E of the Act. Hence, the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is del ..... X X X X Extracts X X X X X X X X Extracts X X X X
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