2019 (7) TMI 1213

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....spectively 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 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 ....

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....ub-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 provisions of Sec.200A(1)(c), (d) & (f) of the Act and those provisions came into force only from 1.6.2015 and therefore the authority issuing intimation u/s. 200A of the Act while processing return of TDS filed u/s.200(3) of the Act, could not levy fee u/s.....

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....posing of an appeal and that the CIT(A) was duty bound to correct errors in the orders of lower authorities. The CIT(A), therefore, rejected this contention of the assessee also. 8. Aggrieved by the order of CIT(Appeals), in declaring the return filed by the assessee as non est, the assessee has preferred the present appeal before the Tribunal because if the return of TDS filed by the assessee is treated as non est, the other consequences under the Act for nonITA deduction of tax at source might follow and hence these appeals by the Assessee. 9. We have heard the rival submissions. The ld. Counsel for the Assessee brought to our notice a decision of the ITAT Bangalore Bench in the case of Manoj Kumar Jaiswal & others Vs. ACIT, CPCTDS, Ghaziabad, in ITA No.2658/Bang/2018 order dated 22.3.2019 dealt with an identical issue wherein the CIT(A) has passed identical order as was passed by the CIT(A) which orders are challenged in these appeals. In the aforesaid decision, the Tribunal held that the TDS return filed beyond time cannot be declared as non est in law and that the CIT(A) does not have powers of enhancement in an appeal against an order u/s.200A of the Act. The learned....

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....ons. The first aspect is as to, whether the TDS return filed u/s. 200(3) of the Act can be declared as non est. We have already extracted the provisions of section 200(3) of the Act. There is no such power conferred, either under those provisions or under any other provisions of the Act, to declare the return of TDS filed u/s. 200(3) as non est. As rightly contended by the learned counsel for the Assessee, the Act contains provision for declaring a return of income filed as invalid u/Sec.139(9) of the Act. There is no such for declaring a return of TDS as invalid. This is a clear indication in the Act that return of TDS cannot be declared as non est. A return of TDS only evidences payment of taxes which are withheld by a payee who, under the provisions of the Act, is bound to deduct tax at source. Declaring a return of TDS as non est, cannot have the effect of treating the payee as an Assessee in default and expose him to other consequences under the Act as an Assessee in default. Section 234E(3) lays down that the fee to be paid u/s. 234E of the Act shall be paid before the return of TDS is filed u/s. 200(3) of the Act. This provision, in our view, does not confe....