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TMI Blog2020 (8) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 200A as well as Section 234E adjustment made by the A.O. on account of late fee U/s 234E of the Act cannot be deleted. Accordingly, we do not find any error or illegality in the impugned order of the ld. CIT(A) and we uphold the same. - Decided against assessee. - ITA No. 96/JP/2019 - - - Dated:- 19-8-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : None For the Revenue : Ms. Chanchal Meena (Addl.CIT) ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 17/05/2018 of ld. CIT(A), Ajmer for the Financial Year 2017-18 (24Q 1st Quarter) arising from the levy of late fee U/s 234E of the Income Tax Act, 1961 (in short, the Act) while issuing the intimation U/s 200A of the Act for the first quarter of F.Y. 2017-18. 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. None has appeared on behalf of the assessee despite notices issued through RPAD as well as intimation given on the mobile available on record. Accordingly, we propose to hear and dispose of this appeal ex parte. 3. The appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n responsible, to deposit late fee, in case of default in depositing late fee along with TDS statement, which can be inferred from the provisions of Sec. 204 of the Act Section 204 particularly states that for the purposes of Sec. 190 to Sec. 203 and for Sec. 285 of the Act the following persons would be responsible , so it is clear that for the purpose of Sec. 234E none of the person has been made responsible, therefore if any late fee is due and not deposited along with the TDS statement none can be held responsible to deposit it. In our case the deductor is Government so as Per law Government cannot be held responsible person to deposit it. 6. In the facts circumstances of the case the learned A.O. erred in imposing late fee without appreciating the facts circumstances of the case and hence the same should be deleted. 7. That the order is bad in law. 8. The appellant carves leave to add, amend, alter, vary and or withdraw any or all the above grounds of appeal with the prior permission of the chair. 4. The assessee is challenging the levy of late fee U/s 234E of the Act while issuing the intimation U/s 200A of the Act of quarterly TDS statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the law has not made any person responsible, to deposit late fee, in case of default in depositing late fee along with TDS statement, which can be inferred from the provisions of Sec. 204 of the act which specifically states as under: Sec. 204 of the Act, for the purposes of [the foregoing provisions of this Chapter] and section 285, the expression person responsible for paying means- in the case of payments of income chargeable under the head Salaries , other than payments by the Central Government or the Government of a State, the employer himself or, if the employer is a company, the company itself, including the principal officer thereof in the case of payments of income chargeable under the head Interest on securities , other than payments made by or on behalf of the Central Government or the Government of a State, the local authority, corporation or company, including the principal officer thereof [(iia) in the case of any sum payable to a non-resident Indian, being any sum representing consideration for the transfer by him of any foreign exchange asset, which is not a short-term capital asset, the [authorised person] responsible for remitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the deductor causes inconvenience to everyone and s. 234E levies a fee to regularize the said late filing. The fee is not in the guise of a tax nor is it onerous. The levy is constitutionally valid. The late submission of TDS statements means the Department is burdened with extra work which is otherwise not required if the TDS statements were furnished within the prescribed time. This fee is for the payment of the additional burden forced upon the Department. A person deducting the tax (the deductor), is allowed to file his TDS statement beyond the prescribed time provided he pays the fee as prescribed under section 234E of the Act. In other words, the late filing of the TDS return/statements is regularised upon payment of the fee as set out in section 234E. This is nothing but a privilege and a special service to the deductor allowing him to file the TDS return/statements beyond the time prescribed by the Act and/or the Rules. We therefore cannot agree with the argument of the Petitioners that the fee that is sought to be collected under section 234E of the Act is really nothing but a collection in the guise of a tax 1.6 As Per [2017] 83 taxmann.com 137 (Gujarat) HIGH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U/s 200A of the Act. It is pertinent to note that in the written submissions filed by the assessee before the ld. CIT(A), the assessee has advanced the plea of reasonableness and tried to explain the bonafide and reasonable cause for the delay in submitting the quarterly TDS statement. 5. On the other hand, the ld DR has submitted that the levy of late fee U/s 234E read with clause (c) of Section 200A(1) of the Act is mandatory and consequential in nature and therefore, the same cannot be deleted on the ground of reasonableness. 6. Having considered the rival submissions as well as relevant material on record at the outset we note that an identical issue has been considered by this Tribunal in the case of Government Secondary School Principal Officer Vs ACIT, CPC-TDS, Gaziabad in ITA No. 964/JP/2019 vide order dated 24/06/2020 in para 6 and 7 as under: 6. We have considered the rival submissions as well as relevant material on record. There is no dispute that there was delay of 315 days in submitting the quarterly TDS statement for the Quarter No. 1 of F.Y. 2017-18 as the assessee filed the said statement only on 14/06/2018 as against the due date of 31/07/2017. The TDS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.O. on account of late filing fee U/s 234E of the Act cannot be deleted. Hence, we uphold the orders of the lower authorities. Thus, the Tribunal have taken a view that after the amendment w.e.f. 01/06/2015 in Section 200A of the Act, the A.O. is empowered to make adjustment on account of fee, if any, in accordance with the provisions of Section 234E of the Act. Once there is a default on the part of the assessee in submitting the quarterly TDS statement, the provisions of Section 234E of the Act are attracted and therefore, while processing the quarterly TDS statement, the A.O. is bound to make the adjustment on account of late fee as provided U/s 234E of the Act. The levy of late fee prescribed U/s 234E of the Act is mandatory and consequential in nature, therefore, the same cannot be deleted on the ground of reasonable cause as explained by the assessee. The order of the A.O. can be challenged only if the A.O. has failed to comply with the mandatory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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