HEMKUNT AGRO CARE P.LTD,NAVI MUMBAI vs. DCIT CPC (TDS), GHAZIABAD

The only issue which arises for consideration is with regard to levy of fee under Section 234E of the Income-tax Act, 1961 (in short 'the Act') while 2 to 3757/Mum/2015 processing the statement furnished by the assessees under Section 200A of the Act.

Facts of the case are that the AO, by invoking the provisions of section 200A, has raised a demand against levy of fees of Rs.24,470 for 2014-15 (24Q-2nd quarter), Rs.62,280/- for 2013-14(24Q-2nd quarter), Rs.39,190/- for 2013-14 (24Q-3rd quarter) and Rs.13,270/- for 2013-14 (24Q-4th quarter) u/s 234E of the Act. Aggrieved by the order of AO, the assessee appealed before the First Appellate Authority (FAA) and the FAA simply by following the decision of the Jurisdictional High Court in the case of „Rashmikant Kundalia V/s Union of India‟ dated 9th February, 2015 confirmed the action of the AO, without going into the legal and factual aspects of the matter. Aggrieved by the decision of the ld.CIT(A), the assessee preferred these appeal before us.

At the time of hearing, the ld. Counsel invited our attention to the provisions of Section 200A, 234E and the Finance Act, 2015 and submitted that according to Finance Act, 2015, the AO is empowered to levy fee under section 234E w.e.f.1.6.2015 and prima facie, the assessment years involved in these appeals are 2013-14 and 2014-15. Therefore, the levy of fees by the AO is bad in law without having jurisdiction over the assessment years involved. The ld.Counsel also submitted that this issue has already been discussed elaborately by the various Benches of Tribunal and decided the issue in favour of the assessee. He also submitted that „Rashmikant Kundalia 3 to 3757/Mum/2015 (supra) is relevant only to the pre-amendment position of section 234E of the Act. In support of his contention he placed reliance on the following decisions: A) Sibia Healthcare Pvt Ltd V/s DCIT in I.T.A. No.90/Asr/2015(AY-2013-14) order dated 9.6.2015; and B) Smt. G. Indhirani V/s DCIT in ITA Nos.1019, 1020 & 1021/Mds/2015 (AY- 2013-14) order dated 10.7.2015 5. The ld.DR did not controvert the afore said contentions of the ld.Counsel and he also could not bring any material contrary to take a different view than the view so taken by the Benches of the Tribunal. He placed reliance on the impugned orders.

I have heard both the parties at length and have perused the material placed before us including the orders of authorities below and case laws relied upon by rival parties. I find that the issue raised in these appeals now stands covered by the Tribunal decisions as mentioned above for the sake of convenience I reproduce held portion of the respective order :

In the case of Sibia Healthcare Private Limited (supra) the Tribunal has held as under (in this decision, the undersigned is the co-author): “10. In view of the above discussions, in our considered view, the adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A. This intimation is an appealable order under section 246A(a), and, therefore, the CIT(A) ought to have examined legality of the adjustment made under this intimation in the light of the scope of the section 200A. Learned CIT(A) has not done so. He has justified the levy of fees on the basis of the provisions of Section 234E. That is not the issue here. The issue is whether such a levy could be effected in