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TMI Blog2018 (10) TMI 1983X X X X Extracts X X X X X X X X Extracts X X X X ..... In the aforesaid case, the Bench concluded that the fees levied under section 234E, prior to 01st June 2015, in the intimations made under section 200A of the Act was without authority of law and therefore, deserves to be deleted. Following the aforesaid cases, the appeals of the assessee are allowed. - ITA No. 4456 & 4457/Mum/2018 - - - Dated:- 4-10-2018 - SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER For the Assessee : Mrs. Renu Kapoor For the Revenue : Shri S.K. Mishra-DR ORDER Per Joginder Singh (Judicial Member) These two appeals are by the assessee against the impugned orders both dated 22/06/2018 of the Ld. First Appellate Authority, Mumbai, sustaining the levy of addition fee under section 234E of the Income Tax Act, 1961 (hereinafter the Act), amounting to Rs.39,400/- for the fourth quarter relating to TDS Form No.26Q (Assessment Year 2014-15) and Rs.7,282/- for 2nd Quarter relating to TDS Form No.26Q (Assessment Year 2015-16). 2. During hearing, the ld. counsel for the assessee, Mrs. Renu Kapoor, relied upon the decision of the Chandigarh Bench of the Tribunal in the case of Sonalac Paints Coating Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in law, the Worthy CIT(A) through his order dated 31.03.2017 has erred in passing that order in contravention of the provisions of S. 250(6) of the Income Tax Act, 1961. 2. That on the facts, circumstances of the case and in law, the Worthy CIT(A) has grossly erred in holding that appeal against order passed u/s 200A, wherein fee u/s 234E has been charged, is not maintainable before him u/s 246A. 3. That on the facts, circumstances of the case and in law, the Worthy CIT(A) has erred in confirming the action of Ld. AO wherein he had erred in creating a demand of Rs 14,000/- u/s 234E on account of late filing of TDS statement by passing intimation u/s 200A even when the said demand raised through intimation u/s 200A is beyond the powers of Ld. AO and even on the facts of the case, no fee should have been levied on the appellant. 4. That on the facts, circumstances of the case and in law, the Worthy CIT(A) has erred in confirming the action of Ld. AO wherein he was unjustified in charging fee of Rs. 14,000/- u/s 234E on account of late filing of TDS statement by passing intimation u/s 200A even when there was reasonable cause which prevented the appellant from filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged by way of adjustment made while processing return u/s 200A of the Act. 7. In rebuttal, ld. counsel for the assessee stated that the Hon'ble Karnataka High Court in the case of Fatheraj Singhvi ors. Vs Union of India Ors.289 CTR 602 (Kar) had ruled in favour of the assessee, that prior to 01.06.2015, no adjustment on account of fees u/s 234E could be made by the AO while processing returns u/s 200A of the Act. The ld. counsel for the assessee further stated that as per the established principles of interpretation of Statute, where two views were possible on an issue, the view favourable to the assessee was to be taken. In this regard, ld. counsel for the assessee relied upon the decision of Apex Court in the case of CIT Vs Poddar Cement Pvt. Ltd. (1997) 226 ITR 625 and CIT Vs Vegetable Products Ltd. 88 ITR 192 (1973). The ld. counsel for the assessee further stated that the CIT(A) had erred in dismissing the appeal stating that it is nonmaintainable. Ld. counsel for the assessee pointed out that intimation made u/s 200A are appealable to the CIT(A) as per provisions of Section 246A of the Act, which outlines the appealable orders before the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been misinterpreted by the CIT(A). In both these cases, the constitutional validity of Section 234E was challenged before the Hon'ble High Courts and one of the pleas taken by the counsels of the assessees against the introduction of the said Section in the Statute was that there was no provision for filing appeals against the orders passed levying fees u/s 234E. It was in this context that the Hon'ble High Court held that even if no appeal lay against levy of fees u/s 234E, the remedy of writ still remained with the aggrieved parties and therefore, the constitutional validity of the said Section could not be challenged on this ground. It may be noted that the observation of the Hon'ble High Courts was in the context of no appeal lying against the levy of fees u/s 234E per-se, but where fees are levied by way of adjustment made in intimations u/s 200A, the said intimations are appealable as per the Statute before the CIT(A). In such cases, the levy of fees is challenged by way of filing appeals against the intimations passed against Section 200A and this is the distinguishing fact between the observations made by the Hon'ble Courts where they observed that no appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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