2018 (10) TMI 1983

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....decisions on the issue in hand. 2.1. We have considered the rival submissions and perused the material available on record. In view of the above, we are reproducing hereunder the relevant portion from the aforesaid decision dated 01/05/2018 for ready reference and analysis:- "These appeals by the assessee's are directed against the orders of the CIT(A)-1 Chandigarh dated 31/03/2017 pertaining to 2013-14, assessment year. 2. It was common ground between both the parties that the issue involved in all the appeals was identical, relating to levy of fees u/s 234E of the Income Tax Act, for delay in filing TDS returns. Therefore all the appeals were heard together and are being disposed of by way of this common order. 3. The facts involved in all the above appeals are identical, being that an intimation u/s 200A of the Act was made to the assessees on processing TDS returns filed by them, levying thereunder fees u/s 234E for late filing of the TDS returns. The details of the said intimations passed in each of the above cases is as under : S.NO. ITA No. Name of the assessee Date of Intimation under section 200A Fees levied 234E(Rs.) 1 11....

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....00A even when the impugned intimation was issued without allowing even a single opportunity of being heard to the appellant. 6. That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same. 5. During the course of hearing before us, ld. counsel for the assessee stated that the fees in the present case was levied while processing the TDS returns u/s 200A of the Act, prior to 01.06.2015, and that as per the provisions of Section 200A of the Act, which existed on the date when the above returns were processed, no adjustment on account of fees u/s 234E could be made while processing the said returns u/s 200A of the Act. The ld. counsel for the assessee pointed out that the mandate to make such adjustment was provided by the Statute only w.e.f. 01.06.2015 by way of an amendment made to Section 200A by the Finance Act, 2015. The ld. counsel for the assessee, therefore, stated that the adjustment made in the present case of levying fees u/s 234E while processing the TDS return u/s 200A of the Act was bad in law. The ld. counsel for the assessee pointed out that the ITAT in a number of cases had del....

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.... both the parties. The issue in the present appeal pertains to levy of fees u/s 234E on account of late filing of TDS returns. The facts on record are that the said fees were levied while processing the TDS returns filed by the assessee as per the provisions of Section 200A of the Act and further that fees in all the above cases was levied prior to 01.06.2015. Further, we have noted that the provisions of Section 234E for levy of fees on account of late filing of TDS returns was brought on the Statute vide Finance Act, 2012 w.e.f. 01.07.2012 and also that Section 200A, which deals with the processing of TDS returns, gave no mandate to make adjustments on account of levy of fees u/s 234E prior to 01.06.2015 and that the same was brought on the Statute only vide Finance Act, 2015 w.e.f. 01.06.2015. The other relevant Section taken note of is the provisions of Section 246A which lists the orders against which appeal lies to the CIT(A) and which we find that the same includes intimations passed u/s 200A of the Income Tax Act for the relevant assessment year. 9. In the above factual and legal background, we shall now proceed to adjudicate the issue before us. The ld. CIT(A), as....

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.... read to be in the context of adjustment made on account of levy of fees u/s 234E in the intimations passed u/s 200A which, otherwise, are appealable before the CIT(A). In view of the above, the order passed by the ld. CIT(A), we hold, is not as per law. 10. Now coming to the merits of the case, we find force in the argument of the ld. counsel for the assessee that prior to 01.06.2015, there was no mandate, as per the Statute, to make any adjustment on account of levy of fees u/s 234E while processing TDS returns u/s 200A. We have taken note of the order of the Hon'ble Gujarat High Court holding the amendment made to Section 200A w.e.f. 01.06.2015, giving power to make adjustment on account of fees u/s 234E while processing returns u/s 200A, to be retrospective in nature, stating that this power given to the AO is a machinery provision while the substantive provision of the power to levy fees u/s 234E was always there on the Statute from 01.06.2012. But at the same time, we note that the Hon'ble Karnataka High Court held that levy of fees u/s 234E while processing returns, TDS u/s 200A prior to 01.06.2015 was without any authority of law. With two divergent views o....