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Before: MS SUCHITRA KAMBLE & DR. B. R. R. KUMAR&
PER SUCHITRA KAMBLE, JM These two appeals are filed by the assessee against the order dated 16/05/2019 & 17/05/2019 passed by CIT(A)-Dehradun for Assessment Year 2013-14 & 2014-15 respectively.
The grounds of appeal are as under:- ITA No. 46/DDN/2019 “1. The Ld.CIT(A) Dehradun has erred in dismissing the appeal in limine without considering the grounds of appeals on merits. 2. The Ld. Assessing Officer has erred in impassing late filing fees of Rs. 71,212/- u/s 201 (1A) of the Income Tax Act, 1961.
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The order passed is arbitrary, against the provisions of law and facts of the case.
Any other ground arising at the time of or before hearing of appeal.”
ITA No. 47/DDN/2019
The Ld.CIT(A) Dehradun has erred in dismissing the appeal in limine without considering the grounds of appeals on merits.
The Ld. Assessing Officer has erred in impassing late filing fees of Rs. 34,733/- u/s 201 (1A) of the Income Tax Act, 1961.
The order passed is arbitrary, against the provisions of law and facts of the case.
Any other ground arising at the time of or before hearing of appeal.”
The return of TDS were filed late as partner looking after the tax matter was not attending business due to ill health as per the submissions made by the assessee vide letter dated ‘NIL’ and received on 15/1/2021 by the Registry of the Tribunal. The same is taken on record. The late filing fees of Rs. 11,212/- for Assessment Year 2013-14 and Rs. 34,773/- for Assessment Year 2014-15 was charged u/s 234E while passing the order u/s 201(1A) of the Income Tax Act, 1961.
The Ld. AR submitted that the order passed u/s 201(1A) electronically was never served upon the assessee. The CIT(A) has suo motu rejected the appeals on sole ground of late filing of appeal by the assessee though it was categorically constituted before him that orders passed u/s 201(1A) were never served upon the assessee. It was only on receipt of notice of demand of tax the assessee came to know about the orders u/s 201(1A) of the Act. The Ld. AR further submitted that there is no inherent power vested with the Assessing Officer to process TDS returns u/s 200A and to levy TDS late fees u/s 234E upto 31.05.2015. The amendment in section 201(1A) came w.e.f. 1.6.2015 giving powers to levy the fees for late filing of TDS returns while doing
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processing u/s 201(1A) and the returns submitted/processed prior to this date were not subject to imposition of late filing fees. Such powers were not vested till the amendment made on 1.6.2015. Reliance is placed on following cases wherein it has been held that charging of late filing fees u/s 234E of the Income Tax Act, 1961 in the order passed u/s 201(1A) is invalid and is uncalled for.
• Sibia Healthcare (P) Ltd. is DCIT(TDS) I.T.A. No.90 /Asr/2015 dated 9.6.2015. • Dhanlaxmi Developers vs. DCIT ITA No.2888 to 2891/Ahmd/2015. • Tanish Industries (P) Ltd. vs. DCIT- ITANo.2296/Ahd./2015 • Perfect Cropscience Pvt. Ltd vs. DCIT, ITA No. 2963/Ahd/2015 The adjustment in respect of levy of fees u/s 234E is indeed beyond the scope of permissible adjustments contemplated u/s 201(1)A. In the absence of the enabling provisions u/s 201(1A) no levy of late filing fees can be effected. The intimation u/s 201(1A) raising a demand or directing a refund to the tax deductor can only be passed within one year from end of the financial year within which the related TDS statement is filed. The order passed u/s 201(A is void ab initio as the assessing order did not have powers to process TDS returns u/s 200A to levy late fees u/s 234E. These powers came into law w.e.f. 31.05.2015. Both the appeals are in respect of the years prior to 31.05.2015. Thus both the orders are void ab initio as devoid of powers to pass order.
The Ld. DR relied upon the order passed u/s 201(1A) by the Assessing Officer, CPC, TDS, Ghaziabad and order of the CIT(A).
We have heard both the parties and perused the material available on record. The CIT(A) has dismissed the appeals in limine and has not discussed the issues on merit. Therefore, it will be appropriate to remand back both the matters to the file of the CIT(A) for proper adjudication after condoning the delay in filing the appeals. Needless to say, the assessee be
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given opportunity of hearing by following principles of natural justice.
In result, both the appeals of the assessee are partly allowed for statistical purpose. Order pronounced in the Open Court on this 15th Day of March, 2021.
Sd/- Sd/- (B. R. R. KUMAR) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 15/03/2021 R. Naheed