TaxTMI 
TaxTMI 
2015 (10) TMI 2541
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....imation was passed without providing any opportunity of being heard because the tax was deposited in time and late filing was only on technical error resulting in no loss to the revenue and fee can be recovered only at the time of filing return. It was also submitted that the impugned returns were late due to Accountant's fault. It was also contended that fees under section 234E can be recovered at the time of filing of the return and not thereafter. 4. The ld. CIT(Appeals), considering the submissions of the assessee noted that in all the intimations under section 200A of the Act, late fees under section 234E of the Act has been charged. A deductor is allowed to file the TDS Statement beyond the prescribed time provided he pays the fees as prescribed under section 234E of the Act. In other words, late filing of the TDS statement is regularized upon payment of the fee as set out in Section 234E. The late fee under section 234E is to be mandatorily levied and so the same cannot be waived. The ld. CIT(Appeals) rejected the contention of the assessee that since there was no loss of revenue, no fees can be levied. It could be recovered only at the time of filing of the return. T....
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.... adjudication on a very short legal issue, within a narrow compass of material facts, we are proceeding to dispose of this appeal on merits. 5. We may produce, for ready reference, section 234E of the Act, which was inserted by the Finance Act 2012 and was brought into effect from 1st July 2012. This statutory provision is as follows: 234E. Fee for defaults in furnishing statements (1) Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delivered a statement within the time prescribed in sub-section (3) of section 200 or the proviso to sub section (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues. (2) The amount of fee referred to in sub-section (1) shall not exceed the amount of tax deductible or collectible, as the case may be. (3) The amount of fee referred to in sub-section (1) shall be paid before delivering or causing to be delivered a statement in accordance with sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C. (4) The provisions of this section shall apply to a state....
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....poses 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. 7. By way of Finance Act 2015, and with effect from 1 st June 2015, there is an amendment in Section 200A and this amendment, as stated in the Finance Act 2015, is as follows: In section 200A of the Income-tax Act, in sub- section (1), for clauses (c) to (e), the following clauses shall be substituted with effect from the 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 r....
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.... 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." 7. On the other hand, ld. DR opposed the submissions of ld. counsel for the assessee and relied upon orders of the authorities below. He has relied upon decision of Bombay High Court in the case Rashmikant Kundalia Vs Union of India dated 06.02.2015 in Writ Petition No. 771/2014 and decision of Rajasthan High Court in the case of M/s Dundlod Shikshan Sanst....
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....S statements under section 200A the only adjustments which could be made were on account of any arithmetical error in the statement or any incorrect claim apparent from any information in the statement or the levy of any interest on TDS. No other adjustment could be made while processing the TDS statements under section 200A. The levy of fee under section 234E, in the impugned case was clearly therefore beyond the powers prescribed under section 200A. It is pertinent to point out that by virtue of amendment to section 200A brought about by the Finance Act 2015, with effect from 01/06/2015, the power to levy fees under section 234E has been specifically incorporated under section 200A. Thus prior to 01/06/2015 no fee under section 234E could be levied while processing TDS statements under section 200A. This view has been affirmed by the Amritsar Bench of the ITAT in case of Sibla Healthcare Private Limited vs. DCIT(TDS) in ITA No. 90/Asr/2015 dt 09/06/2015, wherein the levy of fee under section 234E while processing TDS statements u/s 200A prior to 01/06/2015 was deleted by holding at para 10 as follows: "10. In view of the above discussions, in our considered view, the adj....