TaxTMI 
TaxTMI 
2018 (12) TMI 402
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.... Act for various quarterly TDS returns belatedly filed by the assessee for the assessment years 2013-14 to 2015-16. 3. On appeal, by following the decision in the case of Rajesh Kourani [2017] 83 taxmann 137 (Gujarat), the ld. CIT(A) confirmed the late fee levied under section 234E of the Act. 4. On being aggrieved, the assessee is in appeal before the Tribunal. By filing copy of the order of the Tribunal in the case of M/s. Palanisamy Gounder Charitable Trust v. ITO in I.T.A. Nos. 2947 to 2949/Chny/2017 dated 31.07.2018 relevant to the assessment years 2013-14 to 2015-16, the ld. Counsel for the assessee has submitted that the Tribunal has decided the issue under appeal in favour of the assessee for the assessment years 2013 14 & 2014-15 and prayed for similar decision in the present appeal. Moreover, the ld. Counsel for the assessee has relied on the following decisions: 1. Smt. G. Indhirani v. DCIT [2015] 60 taxmann.com 312 (ChennaiTrib) 2. Sibia Healthcare (P) Ltd. v. DCIT [2015] 63 taxmann.com 333 (Amritsar-Trib)(TM) 3. Maharashtra Cricket Association, Pune v. DCIT [2016] 74 taxmann.com 6 (Pune - Trib) 4. Dharam Deep Public School i....
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....ll these appeals does not stand and the demand raised by way of charging the fees under section 234E of the Act is not valid and the same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law. 34. Before parting we may refer to reliance placed upon by the learned DR on the ratio laid down by Chennai Bench of Tribunal in G. Indirani Vs. DCIT (supra) on another aspect wherein it was held that before 01.06.2015, whether the Assessing Officer had authority to pass a separate order under section 234E of the Act levying fees for delay in filing the TDS statements under section 200(3) of the Act; the Tribunal held 'yes' that the assessing authority had such power and after 01.06.2015, the Assessing Officer was within his limit to levy fees under section 234E of the Act even while processing the TDS statements under section 200A of the Act. In view of the present set of facts, where the Assessing Officer had charged fees under section 234E of the Act while processing the statements under section 200A of the Act before 01.06.2015, there is no ....
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....ake reference to the Memorandum explaining the Finance Bill, 2015, under which the heading was rationalization of provisions relating to Tax Deduction at Source (TDS) and Tax Collection at Source (TCS). The said memorandum categorically recognized that under the existing provisions of the Act, after processing of TDS statements, an intimation is generated specifying the amount payable or refundable. It was further noted that this intimation generated after processing TDS statement is (i) subject to rectification under section 154 of the Act; (ii) appealable under section 246A of the Act; and (iii) deemed as notice of payment under section 156 of the Act. Under the amendment, similar position was given to the processing of TCS statements. In other words, the Legislature recognizes that a deductor who has filed his statement of tax deducted at source, which in turn, has been processed by the Assessing Officer and intimation is generated under which, if any amount is found to be payable, then such intimation generated after processing of TDS returns is subject to rectification under section 154 of the Act and / or is also appealable under section 246A of the Act, since the demand issu....
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....f appeal raised by the assessee are thus, allowed. 37. In the result, all the appeals filed by different assessees for different quarters relating to different years are allowed." 6.3 Similar issue on identical fact was subject matter in appeal before the Tribunal in the case of M/s. Palanisamy Gounder Charitable Trust v. ITO (supra) for the assessment years 2013-14 & 2014-15, wherein the Tribunal has observed and held as under: "7. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. Admittedly, the onus was upon the assessee to prepare statements and deliver the same within prescribed time before the prescribed authority, but the power to collect the fees by the prescribed authority vested in such authority only by way of substitution of clause (c) to section 200A(1) of the Act by the Finance Act, 2015 w.e.f. 01.06.2015. 8. We have perused the Memorandum to the Finance Bill, 2015 in which clause (c) to section 200A(1) of the Act was introduced. The Finance Bill took note of the provisions of Chapter XVIIB, under which the person deducting tax i.e. deductor was required to file quart....
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.... payment of TDS / TCS by the Government, deductor / collector which are not relevant for deciding the issue in the present appeal and hence, the same are not being referred to. The Finance Bill further provided that the amendment would take effect from 01.06.2015. 9. The above Memo further explaining the provision relating to insertion of clause (c) to section 200A of the Act clarifies the intention of Legislature in inserting the said provision. The provisions of section 234E of the Act were inserted by the Finance Act, 2012, under which the provision was made for levy of fees for late furnishing TDS / TCS statements. Before insertion of section 234E of the Act, the Finance (No.2) Act, 2009 had inserted section 200A in the Act, under the said section, mechanism was provided for processing of TDS statements for determining the amount payable or refundable to the deductor, under which the provision was also made for charging of interest. However, since the provisions of section 234E of the Act were not on statute when the Finance (No.2) Act, 2009 was passed, no provision was made for determining the fees payable under section 234E of the Act at the time of processing the TD....
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.... was thus, proposed to amend the provisions of section 200A of the Act so as to enable the computation of fees payable under section 234E of the Act at the time of processing of TDS statements under section 200A of the Act. In other words, the Assessing Officer is empowered to charge fees payable under section 234E of the Act in the intimation issued after insertion of clause (c) to section 200A(1) of the Act w.e.f. 01.06.2015. The Legislature itself recognized that under the existing provisions of section 200A of the Act i.e. prior to 01.06.2015, the Assessing Officer at the time of processing the TDS statements did not have power to charge fees under section 234E of the Act and in order to cover up that, the amendment was made by way of insertion of clause (c) to section 200A of the Act. In such scenario, it cannot be said that insertion made by section 200A(1)(c) of the Act is retrospective in nature, where the Legislature was aware that the fees could be charged under section 234E of the Act as per Finance Act, 2012 and also the provisions of section 200A of the Act were inserted by Finance (No.2) Act, 2009, under which the machinery was provided for the Assessing Officer to pr....
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....ection 200A of the Act in all these appeals does not stand and the demand raised by way of charging the fees under section 234E of the Act is not valid and the I same is deleted. The intimation issued by the Assessing Officer was beyond the scope of adjustment provided under section 200A of the Act and such adjustment could not stand in the eye of law. Accordingly, we set aside the order of the ld. CIT(A) for the assessment years 2013-14 and 2014-15 and direct the Assessing Officer to delete the fees levied under section 234E of the Act." 6.4 However, the ld. DR has argued that the decision of the Hon'ble Gujarat High Court in the case of Rajesh Kaurani 83 taxmann.com 137 was delivered after considering numerous ITAT/High Court decisions and so, this decision in 'Rajesh Kaurani' (supra) should be followed. We do not find the view taken by the ld. CIT(A) to be correct in law. As against 'Rajesh Kaurani' (supra), 'Shri Fatehraj Singhvi and Others vs. UOI', 73 Taxmann.com 252 (Ker), as also admitted by the ld. CIT(A) himself, decides the issue in favour of the assessee. The only objection of the ld. DR is that this decision and others to the same effect have been taken into conside....