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TMI Blog2021 (10) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of by this consolidated for sake of brevity and convenience. 2. First, we take-up ITA.No.3836/Del./2018 for the A.Y. 2013-2014. 3. Facts of the case, in brief, are that a fine fee of Rs. 10,722/- was levied under section 234E of the I.T. Act, 1961 by the A.O. on the ground that there was a delay in filing 26Q TDS return of Quarter-IV of F.Y. 2012-13. 3.1. The assessee filed an appeal before the Ld. CIT(A) and the date was fixed for hearing on 20.03.2018. Since the assessee did not appear before the Ld. CIT(A) on the date of hearing, the Ld. CIT(A) in the ex-parte order passed by her dismissed the appeal of assessee by observing as under: "3.1. Grounds of appeal : 1. The assessing officer was not justified in imposing late f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeded his jurisdiction in levying fee under Section 234E while processing the statement and make adjustment under section 200A of the Act. Therefore the impugned intimation of the lower authorities levying fee under section 234E of the Act cannot be sustained in law. However, it is made clear that it is open to the assessing officer to pass a separate order under section 234E of the Act levying fee, provided the limitation for such a levy has not expired". 3. The appellant craves to add amend or withdraw any of the ground of appeal on or before the date of hearing." 5. Learned Counsel for the Assessee submitted that since the assessee received notice of hearing of appeal on 22.08.2018 i.e., after the date on which the appeal was fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Memorandum to the Finance Bill 2015 which elaborates the rationale for insertion of clause (c) in Section 200A(1) in the statute and submitted that it is absolutely clear that this is merely an enabling Section to compute/process the TDS statement. Section 234E is a charging section imposing liability of payment of fees by the defaulting deductors as per sub-section (3) as even in the absence of section 200A of the Act with introduction of Section 234E, it was always open for the Revenue to charge the fees in terms of Section 234E of the Act from the date of its introduction in the statute i.e., 01.07.2012. 6.1. He submitted that In the case of Rajesh Kourani vs. Union of India [2017] 83 taxmann.com 137 (Gujarat), the Hon'ble Gujarat H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival arguments made by both the sides and perused the record. It is an admitted fact that the Ld. CIT(A) has issued a notice of hearing on 20.03.2018 and decided the appeal on 26.03.2018 in the exparte order passed by her due to non-appearance of the assessee. It is the submission of the Learned Counsel for the Assessee that notice of hearing was received by the assessee on 22.03.2018. It appears from the order of the Ld. CIT(A) that she has given only one opportunity to the assessee. Therefore, we find merit in the arguments of the Learned Counsel for the Assessee that no proper opportunity has been granted. Considering the totality of the facts and circumstances of the case and in the interest of justice, we deem it proper to restore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order u/s 154 only against which the appeal has filed appeal but inadvertently in form no 35 section 200A(1) is written in place of 154. This mistake was caused under a bonafide mistake as on the same date the other appeal was also filed under section 200A(1). 3. That the learned assessing officer has erred in levying the fee under section 234E of the Income Tax Act 1961 while processing TDS return. As per judicial pronouncement such fees can not be imposed before 01.06.2015. It was held therein " that the assessing officer has exceeded his jurisdiction in levying fee under Section 234E while processing the statement and make adjustment under section 200A of the Act. Therefore the impugned intimation of the lower authorities levying fe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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