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TMI Blog2024 (9) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Revenue : Smt. Amanpreet Kaur, Sr. DR ORDER PER VIKRAM SINGH YADAV, A.M. : This is an appeal filed by the Assessee against the order of the Ld. CIT(A)/NFAC, Delhi dt. 19/04/2023 pertaining to assessment year 2020-21. 2. In the present appeal, the assessee has raised the following grounds: 1. That on the facts, circumstances and legal position of the case, the Worthy CIT(A) in Appeal No. NFAC/2019-20/10032219 has erred in passing that order dtd. 19.04.2023 which is in contravention of provisions of S. 250 of the Income Tax Act, 1961. 2. That on facts, circumstances and legal position of the case, Worthy CIT(A) has erred in confirming the order passed by Ld. AO u/s 200A wherein he had imposing late fees u/s 234E on account of late filing of TDS statement even when there existed reasonable and bonafide cause which led to delay in filing of the TDS Statement and more-so when the deduction as well as its deposit to the Govt exchequer was well in time. 3. That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same. 3. Briefly the facts of the case are that the assessee purchased a property from a non resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of TDS deductions in respect of property purchase, the TDS challan deposited in itself is TDS statement and there is no need to further file such TDS statement. Infact, this advise was also not completely incorrect in as much as, in case seller is a resident, the TDS is to be deducted u/s 194IA and in that case, challan deposit is enough and no further TDS statement is required. However, this particular case of the appellant was slightly different that the seller was a non-resident. Based on this advice, the appellant did not file TDS statement. A comparison of relevant provisions, whereby in case of resident seller, no TDS statement is required to be filed and TDS challan deposit is enough versus when seller is a non resident, is as under Rule 31A provides for Statement of deduction of tax u/s 200(3). As per Rule 31A(4A), in case of deduction u/s 194-IA (i.e., purchase of immovable property from resident), no separate TDS statement is required to be filed and TPS challan deposit is enough. (4A) Notwithstanding anything contained in sub-rule (1) or sub-rule (2) or sub-rule (3) or sub-rule (4), every person responsible for deduction of tax under section 194-IA shall furnish to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s essential that the patient receives proper care and treatment since the complications caused due to disease can be life-threatening. With such a difficult situation prevailing in the family, it was difficult for the appellant to focus on other things. d. Soon afterwards a nationwide lockdown on account of spread of COVID-19 was imposed by the Govt, of India. People were confined to their homes and everywhere there was an environment of fear and despair. Many people were seriously ill and many died with medical facilities under severe constraint. All of a sudden, priority changed from day-to-day business to ensuring survival and taking care of near and dear ones. It is only reasonable that with this kind of situation facing the entire country, complying with the provisions of the Act took a back seat. Further, as the appellant was confined to his home, he was prevented to discuss further and seek further professional advice on this topic. 4. These were the reasonable causes, which prevented the appellant to file TDS Statement in time. There is no loss to revenue due to late filing of the TDS return. Neither there was any intention on the part of the appellant to derive any benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice is caused to the Revenue due to non-deduction of TDS. Consequently, the appeal of the assessee was allowed. In our case also, no prejudice has been caused to the revenue since the TDS was deposited in time. Further, the appellant was not aware of the relevant provisions of the law which require return to be filed in case propcrtj' is purchased from non-resident. Based on the advice which he received that there is no requirement to file a TDS return in case of purchase of property, he did not file the return. It is pertinent to mention that the case of Manish Jaiswal (supra) relates to non-deduction of TDS itself, while in the current case, the appellant has deducted and deposited the tax in time, but only failed to file TDS statement in time. In view of this, appeal of the appellant deserve to be allowed. 6. It is further submitted that an order passed u/s 200A, wherein fee u/s 234E has been charged, is appealable u/s 246A before the Hon ble CIT(A). This has been a consistent view by a number of decisions including in Commandant SRPF GR-VII Welfare Fund vs ACIT ITA 1937/Pune/2019 dtd. 30.06.2022. Moving forward, if the appeal has been held by higher judiciary to be maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 234E of the Act in case there is a delay in submitting the TDS statement. The levy has to be computed in accordance with the rate prescribed u/s 234E of the Act. In the following decisions, it has been held that the levy of late fee u/s. 234E is mandatory and consequential: a) Hon'ble High Court of Gujarat in the case of Rajesh Kourani vs. Union of India [2017] 83 taxmann.com 137 (Guj.) b) Hon'ble Bombay High Court in the case of Rashmikant Kundali Others vs. Union of India, 373 ITR 268 (Bom.) c) Hon'ble Kerala High Court in the case of 'Shree Narayana Guru Smaraka Sangam Upper Primary School Vs. Union of India / DCIT, CPC Ghaziabad . in WP(C) No. 30229 of 2013, dated 14.12.2016. 7.3 The appellant has not pressed the ground on levy of the late filing fee u/s 234E of the Act. The only plea raised by the appellant is that there was reasonable cause for such delay in filing quarterly TDS statement. The appellant submitted that it was only due to intricate provisions of the Act, which a layman finds difficult to understand (TDS statement not to be filed in case of purchase of property but to be filed if purchase is from non-resident), the situations prevailing in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ITAT in the case of 'Block Development Officer, Chaksu, Jaipur Vs. ACIT', (ITA Nos. 891, 892, 893, 894, 895 896/JP/2019) has confirmed the levy of late filing fee u/s 234E of the Act when that assessee had not filed any TDS Statement within the stipulated time. In the present case, the assessee has not filed any TDS statement within the stipulated time. Further, there is no technical error in filing of TDS statement. Therefore, reliance placed by the appellant on the above-mentioned decision is misplaced. 7.4 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 on account of computation of period of delay or quantification of the late filing fee u/s 234E of the Act. 7.5 In view of the above facts and law, the charging of late filing fee u/s 234E of Rs. 95,800/- is upheld. This ground is accordingly dismissed. 6. We have heard the rival contentions and purused the material available on record. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200(3) of the Act, which reads as under: Section 200- Duty of person deducting tax. [(3) Any person deducting any sum on or after the 1st day of April, 2005 in accordance with the foregoing provisions of this Chapter or, as the case may be, any person being an employer referred to in sub-section (1A) of section 192 shall, after paying the tax deducted to the credit of the Central Government within the prescribed time, [prepare such statements for such period as may be prescribed] and deliver or cause to be delivered to the prescribed income-tax authority or the person authorised by such authority such statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed:] [Provided that the person may also deliver to the prescribed authority a correction statement for rectification of any mistake or to add, delete or update the information furnished in the statement delivered under this subsection in such form and verified in such manner as may be specified by the authority.] The quarterly TDS statement as well as annual TDS returns are required to be processed u/s 200A of the Act which reads as under: Processing of statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 200A of the Act provides for adjustment on account of fee if any to be computed in accordance with the provisions of Section 234E of the Act. Therefore, in case, there is a default or delay in submitting the TDS statements, a late fee is levied as contemplated u/s 234E of the Act and the A.O. while processing the statements of TDS shall make the adjustment on this account. Thus, so far as the nature of levy u/s 234E of the Act is concerned, it is mandatory in nature and the A.O. has no discretion to take its own decision but he has to make the adjustment on account of levy of late fee as provided u/s 234E of the Act in case there is a delay in submitting the TDS statement. The levy has to be computed in accordance with the rate prescribed u/s 234E of the Act. 7. As regards the quarterly TDS statements for the F.Y. 2016-17, the assessee initially filed statements on 12/06/2017 and consequently the A.O. issued intimation u/s 200A of the Act on 15/06/2017 whereby the adjustment on account of late filing fee u/s 234E of the Act was made by the A.O. These facts are not in dispute in so far as the delay in filing the quarterly statements. Since the assessee has filed rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same cannot be deleted on the ground of reasonable cause as explained by the assessee. It has been further stated that there is no dispute that 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 before the appellate authorities including this Tribunal. 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. 8. The Coordinate Chandigarh Bench in case of Gurpreet Singh (supra), where again, one of us was a party, has also held that there is no opposition that late fee has become mandatory by incorporating section 234E in the statue. At the same time, it was held that where the lapse came about due t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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