TaxTMI 
TaxTMI 
2016 (11) TMI 1124
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the Assessing Officer while passing intimation u/s.200A of the I.T. Act charged late filing fee u/s. 234E in respect of quarterly statements of TDS in Form No. 26Q. 5. The assessee preferred an appeal before the Ld. CIT(A). However, the Ld. CIT(A) dismissed the appeal of the assessee holding that the issue is covered by the decision of the Hon'ble Bombay High Court in the case of Rashmikant Kundalia Vs Union of India dated 9.2.2015. 6. The Ld. Counsel for the assessee before us referring to Section 200A of the Act submits that clauses (c) to (f) of sub-section (1) of Section 200A were substituted by the Finance Act 2015 w.e.f. 1.6.2015 and only in the newly substituted clauses (c) & (d) it was provided that fee shall be computed in accordance with the provisions of Sec. 234E of the Act. Therefore, the Ld. Counsel for the assessee submits that prior to 1.6.2015 since the enabling provision for levy of fee in the provisions of Sec. 200A was not in existence, no fee is chargeable u/s. 234E of the Act prior to 1.6.2015. For this proposition he places reliance on the decision of Chennai Bench in the case of Smt. G. Indhirani Vs DCIT (172 TTJ 239) and the decision of Amritsar Ben....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rried the matter in appeal before the Ld. CIT(A) but without any success. Being aggrieved by the orders of the Ld. CIT(A), the assessees in the above captioned appeals have come in appeal before us. 5. We have heard the rival contentions and have also perused the material on record. The contention of the Ld. respective Counsels for the assessees has been that this issue has already been considered by the Amritsar Bench of the Tribunal in the case of "Sibia Healthcare Pvt. Ltd. vs. DCIT" (2015) 171 TTJ (ASR) 0145 wherein the Amritsar Bench of the Tribunal has held that since the intimation under section 200A is an appealable order before the Ld. CIT(A) (w.e.f. 1.7.2012) under section 246A(a) and therefore the Ld. CIT(A) could have examined the validity of the adjustments made under the intimation under section 200A in the light and scope of the provisions of section 200A. The Tribunal further observed that since there was no enabling provision under section 200A before 01.06.15 providing for the adjustment in respect of levy of fees under section 234E while processing the TDS statements, hence in the absence of such an enabling provision, no such levy could be affected. The provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted. Hence, the reliance of the Revenue on the decision of the Hon'ble Bombay High Court in the case of "Rashmikant Kundalia vs. Union of India" (supra) so far as the issue is concerned, is of no help to the Revenue. One of the contentions raised before the Hon'ble Bombay High Court was that under the provisions of the Act, no appeal is provided for or from an arbitrary order passed under section 234E of the Act. The Hon'ble Bombay High Court observed that a right of appeal is not a matter of right but is a creature of statute and if the legislature deems it fit not to provide a remedy of appeal, so be it. The Hon'ble Bombay High Court has observed that even in such a scenario, the aggrieved party is not left remediless rather such aggrieved person can always approach the Hon'ble High Court in extraordinary equitable jurisdiction under article 226/227 of the Constitution of India, as the case may be. 8. However, in the cases before us, the grievance of the assessees is not against the levy of fees under section 234E of the Act independently rather, the issue is that while processing the TDS statements under section 200A of the Act, whether or not, the fees leviable under section ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thority, however, could not adjust the fees leviable under section 234E while processing the TDS statement under section 200A of the Act. However, after 01.06.15 the Assessing Authority is well within his limit to levy fee under section 234E of the Act even while processing the statement under section 200A and making adjustment. The relevant part of the decision of the Chennai Bench of the Tribunal for the sake of completeness is reproduced as under: "4. The Ld. counsel invited our attention to Section 234A of the Act and submitted that when an assessee fails to deliver the statement within the prescribed time, the assessee is liable to pay by way of fee a sum of Z200/- for every day during such a period the failure continues. Referring to the word used in the section 234E "he shall be liable to pay", the Ld. counsel pointed out that the assessee is liable to pay fee. However, it does not empower the Assessing Officer to levy the fee. Section 234E(3) of the Act provides for payment of the fee before delivery of statement under Section 200(3) of the Act. Therefore, the fee has to be paid by the assessee voluntarily before filing the statement under Section 200(3) of the Act and th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....try 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 subsection (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. The Assessing Officer cannot make any adjustment other than the one prescribed above in Section 200A of the Act. By Finance Act, 2015, with effect from 01.06.2015, the Parliament amended Section 200A by substituting sub-section (1) of clauses (c) to (e). For the purpose of convenience, we are reproducing the amendment made in Section 200A by the Finance Act, 2015 as under:- "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 deduct....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to pay the fee for the periods of delay, then the assessing authority has all the powers to levy fee while processing the statement under Section 200A of the Act by making adjustment after 01 .06.2015. However, prior to 01 .06.2015, the Assessing Officer had every authority to pass an order separately levying fee under Section 234E of the Act. What is not permissible is that levy of fee under Section 234E of the Act while processing the statement of tax deducted at source and making adjustment before 01 .06.2015. It does not mean that the Assessing Officer cannot pass a separate order under Section 234E of the Act levying fee for the delay in filing the statement as required under Section 200(3) of the Act. 9. The contention of the assessee can also be examined in the light of the provisions of Indian Penal Code. Section 396 of Indian Penal Code provides for punishment for dacoity with murder. The punishment is imprisonment for life or rigorous imprisonment for a term which may be extended to ten years and also liable to fine. For the purpose of convenience, we are reproducing Section 396 of Indian Penal Code, hereunder:- "396. Dacoi ty wi th murder - I f any one of f ive or ....