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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI LALIET KUMAR, JM
आदेश / ORDER PER LALIET KUMAR, JM:
This appeal preferred by the assessee emanates from the order of the Ld. CIT(Appeal)-3, Nashik dated 31.05.2017 for the assessment year 2016-17 ( 26Q/Q-1) as per the following grounds of appeal on record:
On the basis of facts and in the circumstances of the case and as per law, the Commissioner of Income Tax (Appeals)-3, Nashik is not justified
in dismissing the appeal by holding that the appeal is not filed within stipulated time limit. He is further not justified in holding that the AO in ITNS-51 has pointed out that the appeal is out of time when in ITNS-51, the AO has never mentioned so. 2. On the basis of facts and in the circumstances of the case, the fees levied u/s.234E of Rs.12,310 may please be deleted. 3. The appellant craves for addition to deletion, alternation, modification, change of any of the grounds.”
At the time of hearing, neither the assessee nor his Authorized Representative was present to represent their case on merits. The records were checked and it was found that notice of hearing has been duly issued and served on the assessee. In spite of the facts, the assessee is absent on this date of hearing. Considering the facts and circumstances, we proceed to hear the appeal on merits by recording submissions of the Ld. DR on record.
In this appeal, intimation had been issued by the Assessing Officer u/s.200A of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟) wherein fees payable u/s.234E of the Act in Form No.26Q/Quarter No.1 has been imposed by the Assessing Officer and confirmed by the Ld. CIT(Appeals). In the present case, the due date for filing TDS is 15.07.2015 and the assessee filed its TDS quarterly statement of 26Q, Qtr-1 on 15.10.2015.
4. The assessee has filed written submissions to the following effect:
“1. No Enabling provision in Statute to charge the fees u/s.234E while processing the TDS statement u/s.234E On perusal of the intimation u/s.200A of the Act, it is seen that the impugned fees u/s.234E of the Act is levied by the AO while processing the quarterly TDS statement u/s.200A of the Act. However, the fees u/s.234E of the Act cannot be levied while processing the TDS statement u/s.200A of the Act as there is no enabling provision therein. For the purpose of convenience, we are reproducing the provisions of Section 200A of the Act- (1) Where a statement of tax deduction at source or a correction statement has been made by a person deducting any sum (hereafter referred to in this section as deductor) under section 200, such statement shall be processed in the following manner, namely:— (a) the sums deductible under this Chapter shall be computed after making the following adjustments, namely:— (i) any arithmetical error in the statement; or (ii) an incorrect claim, apparent from any information in the statement; (b) the interest if any shall be computed on the basis of the sums deductable as computed in the statement ; (c) 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; (d) 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 (e) 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 statement; (ii) in respect of rate of deduction of tax at source, where such rate is not in accordance with the provisions of this Act. (2) For the purposes of processing of statements under sub-section (1), the Board may make a scheme for centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said sub-section.
On careful perusal of the above legal provisions, it appeals that the levy of impugned fees is not authorized by any of the clause of section 200A of the Act as mentioned herein above. However, there is amendments vide Finance Act, 2015 through which the clause (c) is substituted w.e.f. 01.06.2015 which read as under: “In section 200A of the Income Tax Act, in sub section (1) for clause (c) to (e), the following clauses shall be substituted with effect from 1st day of June, 2015 namely : "(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.". Therefore, the AO is empowered to charge the fees u/s.234E of the Act while processing TDS statements u/s.200A of the Act only in respect of TDS statement for the period commencing on or after 01.06.2015. The said new clause (c) in section 200A authorizing to levy the impugned fees is clearly made applicable prospectively w.e.f.01.06.2015. It is never the case of statute to give retrospective effect to the said provision. Therefore, in the absence of enabling provision in section 200A up to 31.05.2015, the levy of fee u/s.234E while processing TDS statement u/s.200A of the Act is legally incorrect. As such the assessing Officer had no authority to levy fee, if any, under section 234E of the Act.”
We have perused the case records and examined the facts of the present case. We find that Hon‟ble Bombay High Court in the case of Rashmikand Kundalia Vs. Union of India & Ors, WRIT PETITION NO.771 OF 2014 has upheld the constitutional validity of section 234E. Admittedly, there is delay in filing return for 92 days for which penalty was imposed in terms of Section 234E of the Act. We find that the assessee has not made out any case for condonation of delay in filing the TDS return The assessee has also not file reasonable cause of condonation of delay. In view of the plain reading of provision of section 234E of the Act, the assessee is duty bound to file the return in the time prescribed u/s.200(3) or 206(c)(iii) and in case the assessee failed to deliver or cause to deliver the statement in the above said provision, then the assessee is liable to pay the fees as provided by the Act. In the present case the assessee had failed to file the return within the period prescribed by the Act for a period of 92 days. Hence the imposition of fees by the Revenue is in accordance with law. Therefore, we are of the opinion that the orders of the lower authorities are fair and reasonable and the same does not call for any interference.
In the result, the appeal of the assessee is dismissed.
Order pronounced on 13th day of February, 2020.
Sd/- Sd/- D. KARUNAKARA RAO LALIET KUMAR ACCOUNTANT MEMBER JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 13th February, 2020. SB आदेश की प्रनिलऱपप अग्रेपषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2.
3. The CIT(Appeal)-3, Nashik.