Ajvin Infotech Pvt Ltd Vs DCIT (ITAT Delhi)
In the given case, two separate appeals by the same assessee are preferred against the common order of the CIT(A) pertaining to second quarter of F.Y. 2013-14 and third quarter of F.Y. 2013-14 .
The issue under consideration is whether penalty u/s 234E will be levied after filing of TDS return or not?
The assessee is having the intention that as per the provisions of Sec. 234E made applicable w.e.f. 1st July, 2012 states that “Amount of late fee shall be paid before delivering a TDS statement”. Thus, it means that any late fee should have been deposited just at the time of delivering TDS statement and not later than this. The authorized TIN-NSDL centre which accepted the TDS statement also accepted these without late fee, as well as the software utility of the TDS department itself accepted these without late fee. Once the TDS statement has been accepted without late fee, then such late fee cannot be recovered later on. TDS statement late fee cannot be recovered for F.Y. 2013-14, as it is not collected at the time of delivering TDS statement to the department.
But as per Finance Act, 2015, attention is drawn to your good self that with effect from 01.06.2015, the Parliament by way of amendment to Section 200A of the Act empowered the Assessing Officer to levy fee under Section 234E of the Act while processing under Section 200A of the Act.
Therefore, according to the Finance Act, 2015, prior to 01.06.2015, your good self had no authority to levy fee, if any, under Section 234E of the Act and thus levy of fee under Section 234E of the Act while processing the statement is beyond the scope of Section 200A of the Act.
In light of the effective date of amendment i.e. 01.06.2015, and considering the decision of the Hon’ble High Court of Karnataka, ITAT direct the Assessing Officer to delete the fee levied u/s 234E of the Act in both the appeals of the assessee.
In the result, both the appeals of the assessee pertaining to second quarter of F.Y. 2013-14 and third quarter of F.Y. 2013-14 are allowed.
FULL TEXT OF THE ITAT JUDGEMENT
These two separate appeals by the same assessee are preferred against the common order of the CIT(A) – 41, New Delhi, dated 27.01.2017 pertaining to A.Y 2014-15 relevant to second quarter of F.Y. 2013-14 and third quarter of F.Y. 2013-14 .
2. The common grievance of the assessee is that the ld. CIT(A) erred in confirming the levy of penalty u/s 234E of the Income tax Act, 1961 [hereinafter referred to as ‘The Act’ for short].
3. None appeared on behalf of the assessee in spite of notice issued nor there in any application for adjournment. Therefore, we decided to proceed ex parte.
4. Having heard the ld. DR who strongly supported the findings of the Assessing Officer. we have carefully perused the orders of the authorities below.
5. The main contention of the assessee, as culled out from the orders of the authorities below are that:
“7. As per the provisions of Sec. 234E made applicable w.e.f. 1st July, 2012 states that “Amount of late fee shall be paid before delivering a TDS statement”. Thus, it means that any late fee should have been deposited just at the time of delivering TDS statement and not later than this. The authorized TIN-NSDL centre which accepted the TDS statement also accepted these without late fee, as well as the software utility of the TDS department itself accepted these without late fee. Once the TDS statement has been accepted without late fee, then such late fee cannot be recovered later on. TDS statement late fee cannot be recovered for F.Y. 2013-14, as it is not collected at the time of delivering TDS statement to the department.
8. AS PER FINANCE ACT 2015 applicable w.e.f. 01.06.2015, , Sub-Sec. 200A is amended to provide that statement of tax deduction at source or correction statement made u/s. 200 shall be processed and sum deductible under Chapter XVII shall be computed after also taking into account the fee, if any, payable in accordance with the provisions of section 234E. The sum payable or refundable shall be determined after adjusting the aforesaid computed sum against any amount paid under section 200 or section 201 or section 234E and any amount paid otherwise by way of tax or interest or fee. ”
Referring to Finance Act, 2015, attention is drawn to your good self that with effect from 01.06.2015, the Parliament by way of amendment to Section 200A of the Act empowered the Assessing Officer to levy fee under Section 234E of the Act while processing under Section 200A of the Act.
Therefore, according to the Finance Act, 2015, prior to 01.06.2015, your good self had no authority to levy fee, if any, under Section 234E of the Act and thus levy of fee under Section 234E of the Act while processing the statement is beyond the scope of Section 200A of the Act.
