TaxTMI 
TaxTMI 
2019 (5) TMI 528
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....ial year 2012-13 on 09.03.2017. The statement was processed by CPC TDS, Ghaziabad. There was a delay in filing the above TDS statement and therefore the AO by intimation u/s. 154 r.w.s. 200A of the Act dated 10.3.2017 levied late fee of Rs. 6,900 u/s. 234E of the Income-Tax Act, 1961 ["the Act"]. Under Sec.234E of the Act, if there is a delay in filing statement of TDS within the prescribed time then the person responsible for making payment and filing return of TDS is liable to pay by way of fee a sum of Rs. 200/- per day during which the failure continues. Section 234E of the Act inserted by the Finance Act, 2012 w.e.f. 1.7.2012. reads as follows:- "Fee for default in furnishing statements. 234E. (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 collectibl....
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.... 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 subsection." 4. Clause (c) to (f) of section 200A(1) was substituted by the Finance Act, 2015 w.e.f. 1.6.2015. The assessee contended that AO could levy fee u/s.234E of the Act while processing a return of TDS filed u/s.200(3) of the Act only by virtue of the provision....
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....ct and only if the defect so pointed out is not rectified, can a return of income filed u/s. 139(1) of the Act be treated as invalid. Since there is no such provision for return of TDS u/s. 200(3) of the Act, the AO cannot treat the statement of TDS filed as invalid. To this argument, the CIT(Appeals) held that the provisions of section 139 and section 200(3) cannot be compared. He also took the following view:- "20. However, since the AO had also not intimated the defect to the appellant; the appellant was issued a show cause by me following the principle of natural justice. It was informed to the appellant that in absence of payment of fee the return shall be treated as non-est. However, even now no fee is paid by the appellant. 21. The only provision which provides for filing of belated TDS return is section 234E. Considering this the Hon. Bombay High Court had held (already discussed supra) that this is nothing but a privilege and a special service to the deductor allowing him to file the TDS return/statements beyond the time prescribed by the Act and/or the Rules. Thus, this argument no. 3 is also rejected." 8. The next argument of the ld. Counsel for the ....
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....oduce a new source in an appeal:- 1. The Commissioner of Income Tax v. Shapoorji Pallonji Mistry [1962] 44 ITR 891 (SC). 2. Commissioner of Income Tax v. Rai Bahadur Hardutroy Motilal Chamaria [1967] 66 ITR 443 (SC) 3. Commissioner of Income Tax v. National Co. Ltd. [1993] 199 ITR 445 (Calcutta). 12. On the parity of ratio laid down in the aforesaid decision, it was submitted that the action of the CIT(Appeals) in declaring return of TDS filed by the assessee as non est was not the subject matter of appeal and the subject matter of appeal was only with regard to correctness of levy of fee u/s. 234E of the Act. In that view of the matter, it was submitted that the CIT(Appeals) erred in going into an issue which was not subject matter of appeal before him. This submission was made without prejudice to the argument that u/s. 251(1)(c), the CIT(A) does not have powers of enhancement. U/s. 251(1)(c) which is applicable in the present case, the CIT(A) may pass such orders in the appeal as he thinks fit. It was submitted that the words "in the appeal" in section 251(1)(c) makes it clear that the CIT(Appeals) cannot travel beyond the subject matter of the appe....
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....the Commissioner (Appeals) shall have the following powers- (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment; (aa) in an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment; (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation.-In disposing of an appeal,....