SH. SAURABH KAUSHIK,PANCHKULA vs. ITO, WARD 2(1), CHANDIGARH
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आयकर अपीलीय अिधकरण,च"ीगढ़ "ायपीठ “बी” , च"ीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH “B”, CHANDIGARH HEARING THROUGH: HYBRID MODE "ी िव"म िसंह यादव, लेखा सद" एवं "ी परेश म. जोशी, "ाियक सद" BEFORE: SHRI. VIKRAM SINGH YADAV, AM & SHRI. PARESH M. JOSHI, JM आयकर अपील सं./ ITA NO. 312/Chd/2023 िनधा"रण वष" / Assessment Year : 2020-21 Saurabh Kaushik बनाम The ITO 1122 Sector-21, Panchkula Ward 2(1) 134112, Haryana India Chandigarh "ायी लेखा सं./PAN NO: APUPS7142C अपीलाथ"/Appellant ""थ"/Respondent िनधा"रती की ओर से/Assessee by : Shri Parikshit Aggarwal., CA and Ms. Shruti Khandelwal, Advocate राज" की ओर से/ Revenue by : Smt. Amanpreet Kaur, Sr. DR सुनवाई की तारीख/Date of Hearing : 05/08/2024 उदघोषणा की तारीख/Date of Pronouncement : 28/08/2024 आदेश/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:
That on the facts, circumstances and legal position of the case, the Worthy CIT(A) in Appeal No. NFAC/2019-20/ 10032219has 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.
That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same.
Briefly the facts of the case are that the assessee purchased a property from a non resident vide sale deed dt. 25/04/2019 and basis certificate obtained by the seller under section 195 of the Act, the assessee deducted TDS on 24/04/2019 and deposited the tax on the same day. The TDS statement in Form 27Q as required under section 200(3) was filed on 21/11/2020 as against the due date of 31/07/19, the same was processed and the AO passed the order under section 200A on 26/11/2020 wherein the AO levied late fee under section 234E amounting to Rs. 95,800/-. The assessee carried matter in appeal before Ld. CIT(A) who has sustained the order of the AO and against the said order, the assessee has come in further appeal before us.
During the course of hearing, the Ld. AR argued the matter at length and reiterated the submissions made before the lower authorities and the contents thereof read as under:
“1. The appellant is an Individual. He along with his father Sh. Suraj Bhan Kaushik, purchased a property from Smt. Shakuntla Mitter (hereinafter referred .to as 'Seller'), a non-resident, vide sale deed dtd. 25.04.2019. (Copy placed at Page No. __). Total sale consideration of the property was Rs. 1,17,00,000/- out of which the appellant's share was 50%,
The seller had obtained a certificate u/s 195 of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’) from his Assessing Officer about lower deduction of tax at source which she supplied to the appellant (Copy placed at Page No._______). Based on that certificate, appellant was to deduct TDS @ 5.66% which he deducted on 24.04.2019 and deposited the said tax amount on same day on 24.04.2019 (Copy of challan placed at Page). Both the deduction as well as its deposit to the Govt, exchequer is, undisputedly, in time.
Though the tax was deducted and deposited in time, the appellant could not submit the required TDS return on time due to combination of different factors. The return was finally filed on 21.11.2020. Factors which contributed to this delay are as follows: a. The appellant is not a professional and not very much conversant with the provision of the Income Tax Act. As a layman, the appellant deducted and immediately deposited the tax as per advice and certificate provide by the seller. He was not at all aware that a separate statement for TDS, other than the normal ITR, is also required to be filed in this case. Further, the appellant was advised at that time, that in case 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 Director General of Income-tax (System) or the person authorised by the Director General of Income-tax (System) a challan-cum- statement in Form No. 26QB electronically in accordance with the procedures, formats and standards specified under sub-rule (5) within [thirty days] from the end of the month in which the deduction is made."
As per Rule 31A(l)(b)(i) TPS statement needs to be filed respect of non-resident deductee.
"31A. ( I ) Every person responsible for deduction of tax under Chapter XVII-B, shall, in accordance with the provisions of subsection (3) of section 200, deliver, or cause to be delivered, the following quarterly statements to the Director General of Income-tax (Systems) or the person authorised by the Director General of Income-tax (Systems), namely:—
(a) Statement of deduction of tax under section 192 and section 194P in Form No. 24Q; (b) Statement of deduction of tax under sections 193 to 196D (other than section 194P) in— (i) Form No. 27Q in respect of the deductee who is a non- resident not being a company or a foreign company or resident but not ordinarily resident; and (ii) Form No. 26Q in respect of all other deductees:" b. The appellant is not someone who regularly deals in sale/purchase of property or even deducts TPS on his other transactions. It is only with regard to the specific transaction of purchase of property that he was required to deduct TPS. The liability to file the TDS statement arose only from the fact that the purchase was from a non-resident and not a resident. As such, he was not at all aware of his obligation to file return and the advice which he received at that time was from the perspective of purchase of property from a resident. The appellant got to know about his obligation to file statement u/s 200(3) only when the seller
approached him, since TDS was not reflecting in her Form 26AS. Thereafter, appellant immediately consulted a professional and then based on correct advise, he filed TDS statement u/s 200(3) on 21.11.2020. c. During this period, the appellant's mother was suffering from a chronic disease, Myotonic Dystrophy. Chronic disease certificate in this regard issued by PGI, Chandigarh, with effect from date 15.4.2019 is placed at Page No. ________. Further various OPD cards for her treatment are placed at Page No._______. The disease causes progressive muscle loss and weakness and has no cure. It is 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.
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 nor did he actually derive any benefit from late filing of the return. The appellant has promptly deposited the TDS with govt, exchequer. 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 family of the appellant and hardships caused due to spread of Covid that the appellant was unable to file the TDS return on time. Considering the fact that no loss is caused to the Revenue and the circumstances due to which the appellant was unable to file the return, in the interests of justice, the appellant cannot be saddled with levy of late filing fee u/s 234E of the Act. For this proposition we rely on ratio of following decisions:
• G.B. Builders vs. ACIT-CPC(TDS) [ITAT, Ahemdabad, ITA No. 626/Ahd/2018 dtd 25-04-2022] "Once the assessee has initially deposited TDS and furnished Statement in Form 26QB within time, but committed a technical error while depositing TDS resulting in non-grant of TDS to transferor, compelling it to again deposit TDS along-with interest for late deposit, then, in the interests of justice and considering the fact that no loss is caused to the Revenue, the assessee cannot be saddled with levy of late filing fee u/s 234E of the Act, taking.a judicious view of the matter. In, result, we hold that Ld. CIT(A) has erred in law and in facts in upholding levy of penalty u/s 234E of the Act. • Sh. Gurpreet Singh vs. The ACIT, TDS [ITAT, Chandigarh, ITA No. 526/CHD/ 2022 dtd. 15.09.2022]
Although there is a general presumption that ignorance of law is not an excuse, however, there is no presumption in law that every individual knows all the law. In a recent judgement delivered by Honble ITAT, Varanasi, with regard to non-deduction of TDS on purchase of property, in the case of Mr. Manish Jaiswal vs. Addl.CIT (TDS) [ITA No. 216/Vns/2019], it was held that non-awareness of provisions of Section 194IA is a reasonable cause u/s 273B for not deducting income-tax at source. Hon'ble ITAT, in turn relied on following judgements of Honble Supreme Court:
Motilal Padampat Sugar Mills Co. Vs. State of U.P. [118 ITR 326] • CIT v. P.S.S. Investments Private Limited, [(1977) 107 ITR 1(SC)] •
In the case of Manish Jaiswal (supra), the assessee also demonstrated that no prejudice 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.
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 Honble 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 maintainable but the relief in any case can not be granted by reducing or deleting the fee charged u/s 234E, then the appeal would be rendered an empty formality and a ritual which can not be the intent of the legislature and the ratio of law laid down in these decisions where it was held that appeal is maintainable. Therefore, your Honour's have enough powers u/s 251 to consider the genuine reason for delay in filing of TDS statement and if found genuine, the same can be reduced or deleted. It is prayed accordingly.
In view of above submission, the said delay deserved to be considered leniently & said fee u/s 234E deserves to be deleted. Appropriate relief is prayed.”
Per contra, the Ld. DR has relied on the findings of the Ld. CIT(A) which read as under:
“7. In Ground No. 3, the appellant contended that the AO has erred in imposing late fees u/s 234E on late filing of TDS statement u/s 200(3) even when there was a reasonable and bonafide cause which led to delay in filing of the TDS Statement.
1 I have gone through the facts and grounds of appeal of the case, intimation u/s 200A of the Act passed by the AO. In this case, it is undisputed fact that the appellant has filed the TDS statement for Q1 of FY 2019-20 on 21.10.2020 i.e., after the due date for filing the TDS statement as prescribed in sec. 200 of the Act. Therefore, as mandated by the statute u/s 234E r.w.s. 200A of the Act, the AO has correctly charged the default and the consequential levy of late filing fees under section 234E of the Act.
2 Section 200A(1) of the Act envisages the method and various adjustments which are required to be made by the A.O. while processing the statement of TDS and issuing intimation. Clause (c) of sub-section (1) 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 shall be levied as contemplated u/s 234E of the Act and the A.O. shall compute such fee while processing the statements of TDS u/s. 200A in accordance with the provisions of sec. 234E. 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. 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.) Hon'ble Bombay High Court in the case of Rashmikant Kundali & Others vs. b) Union of India, 373 ITR 268 (Bom.) Hon'ble Kerala High Court in the case of 'Shree Narayana Guru Smaraka c) 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 family of the appellant and hardships caused due to spread of Covid that the appellant was unable to file the TDS return on time. However, since the levy of late fee as prescribed u/s 234E of the Act is mandatory and consequential, therefore, the same c a n n ot b e deleted on the ground of reasonable cause. There is no provision in the Act which gives power to the AO or CIT(A) to condone the delay in filing TDS statement on account of any reasonable or sufficient cause for such failure. Moreover, without prejudiced to the above, the ignorance of law cannot be considered as a reasonable cause. 7.3.1 The case laws relied upon by the appellant are distinguishable on the facts as discussed below: a) G.B. Builders vs. ACIT-CPC(TDS) [ITAT, Ahmedabad, ITA No. 626/Ahd/2018
dtd 25-04-2022] - in this case, the assessee has initially deposited TDS and furnished Statement in Form 26QB within time, but committed a technical error while depositing TDS resulting in non-grant of TDS to transferor, compelling it to again deposit TDS along-with interest for late deposit. There was, therefore, technical error of not mentioning correct PAN of the deductee in the original TDS statement. Considering the above, peculiar facts and circumstances of the case, the Hon'ble ITAT held that the assessee cannot be saddled with levy of late filing fee u/s 234E of the Act, for technical error in the original TDS statement. However, 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. b) Sh. Gurpreet Singh vs. The ACIT, TDS [ITAT, Chandigarh, ITA No. 526/CHD/ 2022 dtd. 15.09.2022 - in this case, it was due to inadvertent error that original TDS statement has been filed in wrong form i. e. Form No. 26QB rather than in the applicable form No. 27Q. The original TDS statement has been filed within the prescribed time limit. The Hon'ble ITAT has held that it is only that it was due to inadvertent error that the TDS statement was filed in the wrong Form and had it not been so, there would not have been any question of levy of interest u/s 234E of the Act. Mere technical breach cannot lead to the assessee being penalized. Further, it is stated in the above decision that the Hon'ble Jaipur Bench 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.
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.
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.”
We have heard the rival contentions and purused the material available on record. In the instant case, it is an admitted fact that the TDS statement in Form 27Q as required under section 200(3) was filed by the assessee on 21/11/2020 as against the due date of 31/07/19 resulting in levy of late filing fee by the AO under section 234E amounting to Rs. 95,800/- in terms of order passed by the AO under section 200A dated 26/11/2020. There is thus a delay in filing of Form 27Q and the question that arise for consideration is whether the AO has any discretion in examining the explanation so submitted by the assessee explaining the delay in filing the TDS Statement and where the same is found to be acceptable, can the AO reduce or delete the late filing fee so levied. In other words, whether the concept of reasonable cause for the delay in filing the TDS statement can be examined by the AO and if not, any cause of action lies before this Tribunal. The ld CIT(A) while examining the said matter has referred to the decision of the Coordinate Jaipur Benches in case of Block Development Officer, Chaksu, Jaipur Vs. ACIT (Supra). Apparently, one of us was party to the said decision and in the said decision, we find that the matter has been examined at length and the relevant findings therein read as under:
“6. We have considered the rival submissions as well as relevant material on record. There is no dispute as regard the delay in submitting quarter TDS statements under Form No. 24Q as the assessee has filed quarterly statement for the F.Y. 2015-16 only on 19/02/2016, therefore, there was a delay so far as second quarter and third quarter of F.Y. 2015-16 in filing the quarterly statement for which these four appeals are filed by the assessee. As regards the delay in respect of third and fourth quarter of F.Y. 2016-17, the assessee filed quarterly statement on 12/06/2017 and therefore, there was a delay of 132 days and 12 days respectively for these two quarters of F.Y. 2016-17. The assessee has raised objection against the validity of the order passed by the A.O. whereby the intimation dated 05/4/2018 were issued after making adjustment on account of late fee U/s 234E of the Act. Chapter XVII of the Act cast obligation on persons responsible for paying certain amounts to deduct TDS as well as TCS at source. The dispute before us in these six appeals of the assessee is regarding the obligation of TDS and submission of quarterly TDS statements as required U/s 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 statements of tax deducted at source. 200A. (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 deductible as computed in the statement; (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: 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. Section 200A(1) of the Act envisages the method and various adjustments which are required to be made by the A.O. while processing the statement of TDS and issuing intimation. Clause (c) of sub section (1) 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.
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 rectification statements on 05/04/2018, therefore, the A.O. has again issued intimation U/s 154 r.w.s. 200A of the Act. The assessee has not pointed out any mistake in issuing the intimation by the A.O. on account of computation of period of delay or quantification of the late filing fee U/s 234E of the Act. Therefore, as far as merits of the appeals are concerned, we do not find any substance or merits in these appeals as the delay in filing the quarterly statement is accepted by the assessee. The only plea raised by the assessee before the ld. CIT(A) as well as before us is the explanation for such delay in filing quarterly statement. However, since the levy of late fee as prescribed U/s 234E of the Act is mandatory and consequential, therefore, the same cannot be deleted on the ground of reasonable cause as explained by the assessee. 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. 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. 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. Accordingly, all the appeals of the assessee are dismissed.”
In the aforesaid decision, the Coordinate Bench has held that where 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 in accordance with the rate prescribed U/s 234E of the Act for the period of delay as so determined 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. It has been further stated by the Coordinate Bench that since the levy of late fee as prescribed U/s 234E of the Act is mandatory and consequential, therefore, the 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.
The Coordinate Chandigarh Bench in case of Gurpreet Singh (supra), where 8. 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 to technical error such as wrong filing of TDS statement, basis technical breach, there is no case for levy of late filing fee u/s 234E of the Act. It was not a case where the assessee has failed to file the TDS statement or there was delay in filing the TDS statement rather it was a case where a wrong TDS statement (in wrong Form) was filed originally and considering the same, the matter was decided by the Coordinate Bench and the said case is therefore distinguishable as in the instant case, there is an admitted delay in filing the TDS statement.
In the instant case, admittedly, there is a delay in filing the TDS statement and there is no 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 therefore cannot be deleted on the ground of reasonable cause. In view of the same, we agree with the findings of the ld CIT(A) and are not inclined to examine the merits or veracity of claim of reasonable cause as so claimed by the assessee and the same are thus dismissed at the very threshold and levy of late filing fee u/s 234E is hereby confirmed.
In the result, the appeal of the assessee is dismissed.
Order pronounced in the open Court on 28/08/2024 परेश म. जोशी िव"म िसंह यादव (PARESH M. JOSHI) ( VIKRAM SINGH YADAV) "ाियक सद" / JUDICIAL MEMBER लेखा सद"/ ACCOUNTANT MEMBER
AG
आदेश क" "ितिलिप अ"ेिषत/ Copy of the order forwarded to : 1. अपीलाथ"/ The Appellant
""यथ"/ The Respondent 3. आयकर आयु"/ CIT 4. िवभागीय "ितिनिध, आयकर अपीलीय आिधकरण, च"डीगढ़/ DR, ITAT, CHANDIGARH 5. गाड" फाईल/ Guard File
आदेशानुसार/ By order, सहायक पंजीकार/
