Origins Build-Tech Pvt Ltd Vs ACIT (ITAT Ahemdabad)
adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A. This intimation is an appealable order under section 246A(a), and, therefore, the CIT(A) ought to have examined legality of the adjustment made under this intimation in the light of the scope of the section 200A. Learned CIT(A) has not done so. He has justified the levy of fees on the basis of the provisions of Section 234E. That is not the issue here.
The issue is whether such a levy could be effected in the course of intimation under section 200A. The answer is clearly in negative. No other provision enabling a demand in respect of this levy has been pointed out to us and it is thus an admitted position that in the absence of the enabling provision under section 200A, no such levy could be effected. As intimation under section 200A, raising a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed, and as the related TDS statement was filed on 19th February 2014, such a levy could only have been made at best within 31st March 2015. That time has already elapsed and the defect is thus not curable even at this stage.
In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees under section 234 E is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned levy of fee under section 234E of the Act.
FULL TEXT OF THE ITAT JUDGMENT
1. By way of this appeal, the assessee-appellant has challenged correctness of the order dated 01.01.2108 passed by the by the CIT(A)-8, Ahmedabad, in the matter of levy of late filing fees under section 234E, in the course of processing under section 200A of the Income-tax Act, 1961, for the assessment year 2015-16.
2. The grievances raised by the assessee is as follows:-
“The learned CIT(A)-8 is unjustified & erred iin law by confirming the imposing of late filing levy by ACIT [CPC-TDS) of Rs.30800/- u/s 234E determined to be payable by processing TDS statement u/s 200A, without issuing show cause notice. The late fee u/s 234E is penal in nature which cannot be levied without passing of speaking order just by processing TDS statement.”
3. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.
4. The period of delay in question is prior to 1st June 2015, i.e. prior to the period in which the relevant amendment in section 200A was made. On these facts, there is no dispute that the issue is squarely covered in favour of the assessee by the Division Bench decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT – ITA No.90/Asr/2015, vide order dated 9th June, 2015, wherein the Division Bench has inter alia observed as under :-
“4. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. In addition to his argument on the merits, learned counsel has also invited our attention to the reports about the decisions of various Hon ’ble High Courts, including Hon’ble Kerala High Court, in the case of Narath Mapila LP School Vs Union of India [WP (C) 3 1498/2013(J)], Hon’ble Karanataka High Court in the case of Adithya Bizor P Solutions Vs Union of India [WP No. 69 18- 6938/2014(T-IT), Hon’ble Rajasthan High Court in the case of Om Prakash Dhoot Vs Union of India [WP No. 1981 of 2014] and of Hon’ble Bombay High Court in the case of Rashmikant Kundalia Vs Union of India [WP No. 771 of 2014], granting stay on the demands raised in respect of fees under section 234E. The full text of these decisions were not produced before us. However, as admittedly there are no orders from the Hon’ble Courts above retraining us from our adjudication on merits in respect of the issues in this appeal, and as, in our humble understanding, this appeal requires adjudication on a very short legal issue, within a narrow compass of material facts, we are proceeding to dispose of this appeal on merits.
