HEMAL S. GONDALIA,MUMBAI vs. DCIT CPC (TDS), GHAZIABAD

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.4800 for 2014-15 (24Q-1st quarter), Rs.14000/- for 2014-15 (24Q-2nd quarter), Rs.5200/- for 2013-14 (24Q-2nd quarter), Rs.17,000/- for 2013-14 (24Q-3rd quarter), and Rs.14200/- 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 my 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 2006-07 and 2013-14. Therefore, the levy of fees by the AO is bad in law. The ld.Counsel also submitted that this issue has ITA Nos.3758, 3759, 3761 and 3762/Mum/2015 3 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 (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 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

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 , 3759, 3761 and 3762/Mum/2015 4 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 the course of intimation under section 200A. The answer is clearly in negative. No other provision enabling a demand in respect of this levy has been pointed out to us and it is thus an admitted position that in the absence of the enabling provision under section 200A, no such levy could be effected. As intimation under section 200A, raising a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 19th February 2014, such a levy could only have been made at best within 31st March 2015. That time has already elapsed and the defect is thus not curable even at this stage. In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees under section 234 E is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned levy of fee under section 234E of the Act. The assessee gets the relief accordingly.

Respectfully following the principle laid down by the Tribunal, I decide the issue in favour of the assessee.