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TMI Blog2020 (6) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation given by the appellant in respect of the bonafide explanation on the ground of sufficient reason/genuine cause with proper documents and evidence in respect of the section 234E but has solely limited his order to the findings of appeal whereas we have Submitted before the Ld. CIT-(Appeals)-III. That during the considering quarter, the report of TDS was submitted by us for salary of the government employees, all the taxes was paid timely but the TDS return was filed late due to some reasonable, unavoidable and sufficient causes for failure like limited staff and implementation of government project such as NAREGA, SWACHH BHARAT MISSION, PMGY etc. which is necessary in the interest of public. Hence due to limited personnel the TDS returns was late filed by the our department in this relation we request you that for such reasonable and unavoidable causes the late fees cannot be imposed on the assessee. 2. That on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) has erred in sustaining the levy of penalty U/S 234E/154. Ld. CIT has not only failed to consider and appreciate the explanation given by the appellant in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts nor fund to clear such amount. 5. That the Ld. Commissioner of Income Tax (Appeals) has failed to appreciate that the Sub section (3) of the section 234E of the Act states that it shall be paid before delivering a TDS statement. It means that any late fees should have been deposited just at the time of delivering TDS statement and not later than this. That once the TDS statement has been accepted without late fees and then such late fee cannot be recovered later on. In the view of the above, late fee cannot be recovered later on by way of any notice, no notice of demand U/s 156 can be issued for this. 6. That the Ld. Commissioner of Income Tax (Appeals) has failed to appreciate that the Provisions of Sec.204 of the Act has made the person responsible for Sec. 190 to Sec. 203AA and Sec.285, this phrase does not cover Sec.234E, it means no one is responsible for default U/s 234E of the Act. Its also clears that if late fees are due but not deposited along with the TDS statement anyone cannot be held responsible to deposit it later on. That the order of the Ld. Commissioner of Income Tax (Appeals) is arbitrary, against the facts and circumstances of the case, illegal and be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2018 made the adjustments towards late fee U/s 234E of the Act. 3. The assessee challenged the action of the A.O. by filing the appeal before the ld. CIT(A) and contended that the A.O. was not justified in levying the late fee U/s 234E of the Act when the assessee duly deducted TDS and paid to the account of the central government within time but due to the circumstances as explained by the assessee, the assessee could not submit/deliver quarterly statement within the period stipulated as per Rule 31A of the Income Tax Rules, 1962 (in short, the Rules). The assessee has raised various grounds of challenging the order of the A.O. for levying the late fee U/s 234E of the Act while issuing the intimation U/s 154 of the Act. The ld CIT(A) did not accept the contention of the assessee. 4. Before the Tribunal, the ld AR of the assessee has submitted that the assessee was performing his functions/duties of implementation of government projects such as NAREGA, Swachh Bharat Mission, PMGY etc. and disbursed the payments in respect of these projects after deducting TDS within the time prescribed under the law. The assessee has also deposited TDS in the government account alongwith interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable and bonafide cause. Thus, a levy of late fee for default in furnishing the statements is required U/s 200(3) as well as Section 206C(3) of the Act. Therefore, the A.O. is having no discretion to levy or not to levy the penalty but it is mandatory once there is a default in furnishing the TDS statements on the part of the assessee. The ld DR has further contended that that Section 154 of the Act envisages amendment in intimation issued U/s 200A(1) of the Act and therefore, there is no error or illegality in the order of the A.O. passed U/s 154 of the Act and levying the fee for default in furnishing the TDS statement. Thus, the ld DR has contended that the reasons explained by the assessee for default are not relevant for the purpose of late fee levied U/s 234E of the Act. She has relied upon the orders of the authorities below. 6. We have considered the rival submissions as well as relevant material on record. There is no dispute as regard the delay in submitting quarter TDS statements under Form No. 24Q as the assessee has filed quarterly statement for the F.Y. 2015-16 only on 19/02/2016, therefore, there was a delay so far as second quarter and third quarter of F.Y. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computed after making the following adjustments, namely:- (i) any arithmetical error in the statement; or (ii) an incorrect claim, apparent from any information in the statement; (b) the interest, if any, shall be computed on the basis of the sums deductible as computed in the statement; 13[(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:] 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as far as merits of the appeals are concerned, we do not find any substance or merits in these appeals as the delay in filing the quarterly statement is accepted by the assessee. The only plea raised by the assessee before the ld. CIT(A) as well as before us is the explanation for such delay in filing quarterly statement. However, since the levy of late fee as prescribed U/s 234E of the Act is mandatory and consequential, therefore, the same cannot be deleted on the ground of reasonable cause as explained by the assessee. It is pertinent to mention that though the intimation issued U/s 200A of the Act is an appealable order, however, the said order can be challenged only on the ground that the adjustment made by the A.O. or intimation issued U/s 200A of the Act is not in accordance with the provisions of Section 234E or Section 200A of the Act. Only if the A.O. has failed to comply with the mandatory provisions of these Sections while making the adjustment and issuing the intimation, the same can be challenged in the appeal. In absence of any such allegation that the A.O. has violated any of the provisions of Section 234E or Section 200A of the Act, the adjustment made by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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