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TMI Blog2019 (7) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... utomatically follow. Validity of Section 234E -The Court in Rashmikant Kundalia Anr. v/s Union of India, 2015 (2) TMI 412 - BOMBAY HIGH COURT] has held, the fee charged under section 234E is nothing but a privilege and a special service to the deductor allowing him to file TDS returns / statements beyond the time prescribed by the Act and the Rules. The Court has held that on payment of the fee under section 234E, the deductor is allowed to file the TDS returns/statements beyond the prescribed time so that it can be regularized. Applicability of Section 234E on filing of Form no.26QB - No doubt, the provision contained u/s 234E of the Act makes it clear that it will be applicable if the deductor fails to deliver the TDS statement within the time prescribed in u/s 200(3). Whereas, section 200(3) makes it clear that furnishing of TDS statement in the prescribed form, manner and time applies to all TDS provisions including section 194IA contained under Chapter XVII. Therefore, assessee s claim that since the challan cum statement is generated on a single date, therefore, it will not come within the purview of section 200(3) of the Act, is unacceptable. Thus, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, therefore, as a matter of convenience, these appeals were heard together and are being disposed of by way of this consolidated order. 3. The common ground raised by the assessee in all these appeals read as under: 1(a) The learned CIT(A) erred in confirming the action of the Assessing Officer in levying the fees of ₹ 53,760 under section 234E of the Act (on delay in filing Form 26QB) on purchase of each flat ignoring the fact that the appellant had bought 96 flats through one allotment letter only. 4. Brief facts are, the assessee company, as stated, is engaged in the business of real estate construction and development. During the previous year relevant to the assessment year under dispute, the assessee entered into an agreement with M/s Accent Construction Pvt. Ltd. for purchase of ninety six flats in three buildings. Vide allotment letter dated 29th October 2015, the developer company allotted the flats to the assessee for a total consideration of ₹ 100,51,65,650. On the date of allotment letter itself i.e., 29th October 2015, out of the total sale consideration, the assessee paid an amount of ₹ 55 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispensed with on the ground of reasonable cause for late filing of TDS statement. As regards the contention of the assessee that the entire transaction relating to the sale of flats should be treated as single transaction and fee under section 234E of the Act should be levied by treating the TDS statements filed under section 200(3) of the Act as a single statement, learned Commissioner (Appeals) observed, when the assessee itself has filed separate statements of TDS in respect of each individual transaction relating to purchase of flat, it cannot be said that purchase of all the flats is to be treated as single transaction, thereby, statements filed under section 200(3) of the Act in respect of such transaction is to be treated as one. Further, learned Commissioner (Appeals) observed, in the decision of the Hon'ble Jurisdictional High Court, it is also held that there is no provision for filing of appeal against levy of fee under section 234E of the Act. Thus, ultimately, learned Commissioner (Appeals) dismissed the appeals filed by the assessee. 6. The learned Authorised Representative submitted, the assessee was compelled to make multiple TDS challan cum st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf, the provision of section 200(3) of the Act is not applicable. Therefore, there cannot be levy of fee under section 234E of the Act. Countering the observations of learned Commissioner (Appeals) that levy of fee under section 234E of the Act is to compensate the additional work load of the Department, the learned Authorised Representative submitted, in the present case the challans cum statements are dated 29th September 2016, and the due date of filing of return of income by the deductees is 30th September 2016 for the assessment year 2016 17. Therefore, there cannot be any extra work load for the Department due to late filing of TDS statements. Finally, the learned Authorised Representative submitted, the order passed under section 200A imposing fee under section 234E of the Act has become appealable before learned Commissioner (Appeals) w.e.f. 1st June 2015, hence, the appeals of the assessee before the first appellate authority are maintainable. In support of his contention, the learned Authorised Representative relied upon the following decisions: 1. Balwant Vitthal Kadam v/s Sunil Baburao I. Kadam, [2018] 2 SCC 82; and 2. Tax Practiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 234E of the Act, the learned Authorised Representative has made submissions before us, which can be summarized as under: i) Due to paucity of space in Form no.26QB, assessee was compelled to deposit TDS in separate challans cum-statements instead of a single challan-cum-statement. Therefore, late fee should be levied in respect of a single challan cum statement; ii) Provision of section 194IA of the Act is not applicable as there is no transfer of immovable property; iii) Since Form no.26QB is a challan cum statement which is generated on the very date of payment of TDS, it does not come within the purview of section 200(3) of the Act; and iv) There is no additional work load on the Department as the assessee has filed the TDS statements before the due date of filing of return of income by the deductees for the assessment year 2016 17. 9. Insofar as assessee s contention regarding applicability of section 194IA of the Act is concerned, we are unable to accept the same due to following reasons. Undisputedly, at the time of making payment of ₹ 55 crore to the seller of the flats, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Jurisdictional High Court not only upheld the validity of section 234E of the Act, but also observed that the delay in furnishing of TDS returns/statements has a cascading effect and leads to an additional work burden upon the Department. The Hon ble High Court held, to compensate for the additional work burden forced upon the Department, the fee under section 234E of the Act is contemplated which is not punitive in nature. The fee is a fixed charge for the extra service which the Department has to provide due to the late filing of the TDS statement. The Court held, the fee charged under section 234E of the Act is nothing but a privilege and a special service to the deductor allowing him to file TDS returns / statements beyond the time prescribed by the Act and the Rules. The Court has held that on payment of the fee under section 234E of the Act, the deductor is allowed to file the TDS returns/statements beyond the prescribed time so that it can be regularized. Thus, from the aforesaid decision of the Hon'ble Jurisdictional High Court, it is evident that the fee under section 234E of the Act is nothing but a privilege or special service allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, this contention of the learned Authorised Representative also fails. 13. Now, coming to the primary contention of the learned Authorised Representative that all the transactions relating to purchase of flats should be taken as a single transaction for the purpose of filing the TDS statement and computing fee under section 234E of the Act, we do not find any merit in such contention. On a perusal of the allotment letter dated 29th October 2015, a copy of which is placed in paper book and, more particularly, Annexure B to the said letter reveals that the details and description of each of the flat along with cost thereof has been specifically mentioned. It is also a fact that the assessee has computed and deposited the TDS amount on the basis of the cost of each flat. In that view of the matter, the claim of the assessee that purchases of all the flats is to be taken as a single transaction, therefore, the levy of fee prescribed under section 234E of the Act is to be restricted to one challan cum statement filed in Form no.26QB, is unacceptable. When the assessee itself has filed separate TDS statements in respect of the tax deducted at source relating to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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