Smt. Anisha Shirishkumar Modi, Palanpur V. The Dy.CIT, TDS, CPC, Gaziabad

ITA 3228/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9619 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-02-2016
• Assessment Year: misc
• Appeal Filed On: 10-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B
• Assessee Lawyers: MANISH M RAJVAIDYA
• Keywords: Charitable institution
• Section: 246

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD .. , , BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NOS.3227 & 3228/AHD/2015 ( / ASSESSMENT YEAR : 2013-14) SMT ANISHA SHIRISHKUMAR MODI, MODIKUNJ AMIR ROAD PALANPUR, B.K.385 001 GUJARAT / VS. THE DCIT (TDS) CPC, GAZIABAD # ./ ./ PAN/GIR NO. : ADMPM 2285 N ( #& / APPELLANT ) .. ( '(#& / RESPONDENT ) #& ) / APPELLANT BY : SHRI MANISH M.RAJVAIDYA, CA '(#& * ) / RESPONDENT BY : SHRI B. PANDA, SR.DR +, * - / DATE OF HEARING 08/02/2016 ./01 * - / DATE OF PRONOUNCEMENT 10/02/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : BOTH THE APPEALS HAVE BEEN FILED BY THE ASSESSEE AG AINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-8, AHMEDABAD DATED 03.09.2015 FOR ASSESSMENT YEAR 2013-14. ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 2 - 2. IN THESE APPEALS, THE ASSESSEE HAS RAISED FOLL OWING COMMON GROUNDS (EXCEPT QUANTUM):- 1. WRONGLY CHARGING LATE FILING FEES U/S. 234E OF THE I. T. ACT OF RS.5.500/- FOR FINANCIAL YEAR 2012-13 (QUART ER - 2) (AND IN ITA NO.3228/AHD/15 OF RS.9,375/- FOR QUARTER-3) W HICH IS BEFORE THE PERIOD BEFORE 01-06-2015. A. THE LEARNED A.O. AND THE LEARNED CIT(A) HAS ERRE D IN LAW AND ON FACTS WHILE LEVYING THE LATE FILING FEES U\S. 234E OF RS. 5,500/- (AND IN ITA NO.3228/AHD/15 OF RS.9,375/-) ON THE APPELLANT IN T HE INTIMATION ISSUED U/S. 200A OF THE I.T. ACT, 1961 DATED 09-12-2013. THE LEARNED A.O. AND THE LEARNED CIT(A) HAS ALSO ER RED IN LAW AND ON FACTS WHILE NOT CONSIDERING THAT VIDE FINANCE ACT, 2015 C LAUSE (C) TO (E) OF SUB- SECTION (1) OF SECTION 200A WHICH IS THE OPERATING SECTION FOR PROCESSING THE STATEMENTS OF TAX DEDUCTION AT SOURCE HAS BEEN SUBS TITUTED W.E.F. 01-06-2015 AND ACCORDINGLY AFTER 01-06-2015 IN THE COURSE OF P ROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SECTION 200A IN RESPECT THEREOF, ADJUSTMENT COULD ALSO BE MADE IN RESPECT OF THE 'FE ES, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISION OF SECTIO N 234E'. THUS, THE LEARNED A.O. AND THE LEARNED CIT(A) HAS ERRED IN LA W AND ON FACTS WHILE NOT CONSIDERING THAT THE LAW STOOD, PRIOR TO 01-06-2015 , THERE WAS NO ENABLING PROVISION THEREIN FOR RAISING A DEMAND IN RESPECTED OF LEVY OF FEES UNDER SECTION 234E AND PRIOR TO 01-06-2015 THERE WAS LIMI TED MANDATE OF SECTION 200A, WHICH PERMITTED COMPUTATION OF AMOUNT RECOVER ABLE FROM, OR PAYABLE TO, THE TAX DEDUCTOR AFTER MAKING THE FOLLOWING ADJ USTMENT: (A) AFTER MAKING ADJUSTMENT ON ACCOUNT OF 'ARITHMET ICAL ERRORS' AND 'INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN THE STATEMENT' (B) AFTER MAKING ADJUSTMENT FOR 'INTEREST, IF ANY, COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT' NO OTHER ADJUSTMENT IN THE AMOUNT REFUNDABLE TO, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBLE IN ACCORDANCE WITH THE L AW. THUS, IT IS TO BE SUBMITTED THAT PRIOR TO 01-06-2015, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS BEYOND THE SCOPE OF PERMISSI BLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A OF THE I.T. ACT, 19 61. ACCORDINGLY, SINCE IN THE CASE OF THE APPELLANT SINCE THE TDS RETURN OF T HE APPELLANT IS FOR THE ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 3 - FINANCIAL YEAR 2012-13 (QUARTER 3) HAS BEEN PROCESS ED VIDE INTIMATION U\S. 200A DATED 09-2-2013, WHICH IS BEFORE 01-06-2015, I T IS NOT PERMISSIBLE AS PER LAW AS PER THE ABOVE DISCUSSION. (THE LEARNED CIT(A) HAS ALSO ERRED IN LAW AND ON FA CTS WHILE NOT CONSIDERING THE CASE LAWS REFERRED BEFORE HIM WHEREIN IT HAS BE EN HELD THAT NO PENALTY COULD BE LEVIED UNDER SECTION 234E PRIOR TO 01-06-2 015, IN THE RECENT CASE OF AMRITSAR BENCH OF TRIBUNAL REPORTED AT 2015 ITL 533 IN CASE OF SIBIA HEALTHCARE PRIVATE LIMITED VS. DY. CIT (IDS) VIDE I TA NO. 90/ASR/2015 A.Y.2013-14, THE APPELLANT WOULD ALSO LIKE TO PLACE RELIANCE ON THE FOLLOWING CASE LAWS : - (A) NARATH MAPILA LP SCHOOL VS. UNION OF INDIA (WP (C) 31498 / 2013 (J)) HON'BLE KERALA HIGH COURT, (B) ADITHYA BIZOR P SOLUTIONS VS. UNION OF INDIA (W P NO. 6918-6938/2014 (T- IT)) HON'BLE KARNATAKA HIGH COURT, (C) OM PRAKASH DHOOT VS. UNION OF INDIA (WP NO. 198 1 OF 2014) HON'BLE RAJASTHAN HIGH COURT AND (D) RASHMIKANT KUNDALIA VS. UNION OF INDIA (WP NO. 771 OF 2014) HON'BLE BOMBAY HIGH COURT. B. WITHOUT PREJUDICE TO WHATEVER STATED HEREINA BOVE THE APPELLANT WOULD LIKE TO SUBMIT AS UNDER:- THE LEARNED A.O. AND THE LEARNED CIT(A) HAS ERRED I N LAW AND ON FACTS WHILE NOT CONSIDERING THAT AS PER THE PROVISION OF SEC.23 4E HAVE BEEN MADE APPLICABLE W.E.F. 1 ST JULY, 2012. IT STATES THAT 'AMOUNT OF LATE FEE SHA LL BE PAID BEFORE DELIVERING A TDS STATEMENT', IT MEANS THAT A NY LATE FILING FEE SHOULD HAVE BEEN DEPOSITED JUST AT THE TIME OF DELIVERING TDS STATEMENT AND NOT LATER THAN THIS. THE AUTHORIZED TIN- NSDL CENTRE WHICH AC CEPTED 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. ACCORDINGLY, IT IS TO BE SUBMITTED THAT ONCE THE TDS STATEMENT HAS BEE N ACCEPTED WITHOUT LATE FEE, THEN SUCH LATE FEE CANNOT BE RECOVERED LATER O N. AS WELL AS THAT AS PER THE PROVISION OF SEC. 234E(4 ) WHICH STATES THAT LATE FEE IS APPLICABLE FOR 'TDS STATEMENT WHICH IS TO BE DEL IVERED OR CAUSED TO DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECT AT SOURCE, AS THE CASE MAT BE, ON OR AFTER 1 ST JULY, 2012'. ACCORDINGLY, LATE FEE CANNOT BE RECOV ERED FOR ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 4 - TDS STATEMENTS, IF NOT COLLECTED AT THE TIME OF DEL IVERING IDS STATEMENT TO THE DEPARTMENT. AS WELL AS THAT AS PER PROVISION OF SECTION 204 SPE CIFICALLY SAYS THAT 'FOR THE PURPOSES OF SEC. 190 TO SEC. 203 AND FOR SEC. 285 O F THE ACT THE FOLLOWING PERSONS WOULD BE RESPONSIBLE', SO IT IS CLEAR THAT FOR THE PURPOSE OF SEC. 234E NONE OF THE PERSON HAS BEEN MADE RESPONSIBLE, THERE FORE IF ANY LATE FEE IS DUE AND NOT DEPOSITED ALONGWITH THE IDS STATEMENT NONE CAN BE HELD RESPONSIBLE TO DEPOSIT IT. UNDER THE CIRCUMSTANCE THE LATE FILING FEES RAISED VIDE INTIMATION U/S. 200A OF THE IT. ACT, 1961 FOR RS. 9,375/- FOR FINANCIAL YEA R 2012-13 (QUARTER - 3) IS BAD IN LAW AND REQUIRES TO BE SQUASHED. THE APPELLANT RESERVES IT RIGHT TO ADD, AMEND, ALTE R, SUBSTITUTE OR MODIFY ALL OR ANY GROUNDS STATED HEREINABOVE AS THE FACTS AND CIR CUMSTANCES OF THE CASE MY JUSTIFY. 2.1. THE SHORT GRIEVANCE OF THE ASSESSEE IS THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED I N UPHOLDING THE LEVY OF THE LATE FILING FEES IN THE COURSE OF PROCESSING TDS RETURN UNDER SECTION 200A OF THE ACT. 3. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW AS WELL AS DULY CONSIDERED THE FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. WE FIND THAT THE ISSUE IN BOTH THE APP EALS IS NOW SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F ITATAMRITSAR BENCH IN THE CASE OF SHIBIA HEALTHCARE PRIVATE LIMITED VS . DY.CIT(TDS) IN ITA ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 5 - NO.90/ASR/205, VIDE ORDER DATED 9 TH JUNE, 2015, WHEREIN THE DIVISION BENCH HAS INTER ALIA OBSERVED AS UNDER:- 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED T HE 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 DECI SIONS OF VARIOUS HONBLE HIGH COURTS, INCLUDING HONBLE KERALA HIGH COURT, I N THE CASE OF NARATH MAPILA LP SCHOOL VS UNION OF INDIA [WP (C) 31498/20 13(J)], HONBLE KARANATAKA HIGH COURT IN THE CASE OF ADITHYA BIZOR P SOLUTIONS VS UNION OF INDIA [WP NO. 6918-6938/2014(T-IT), HONBLE RAJASTH AN HIGH COURT IN THE CASE OF OM PRAKASH DHOOT VS UNION OF INDIA [WP NO. 1981 OF 2014] AND OF HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UNION OF INDIA [WP NO. 771 OF 2014], GRANTING STAY ON THE DE MANDS 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 ORDE RS FROM THE HONBLE COURTS ABOVE RETRAINING US FROM OUR ADJUDICATION ON MERITS IN RESPECT OF THE ISSUES IN THIS APPEAL, AND AS, IN OUR HUMBLE UNDERS TANDING, THIS APPEAL REQUIRES ADJUDICATION ON A VERY SHORT LEGAL ISSUE, WITHIN A NARROW COMPASS OF MATERIAL FACTS, WE ARE PROCEEDING TO DISPOSE OF THI S APPEAL ON MERITS. 5. WE MAY PRODUCE, FOR READY REFERENCE, SECTION 23 4E OF THE ACT, WHICH WAS INSERTED BY THE FINANCE ACT 2012 AND WAS BROUGH T INTO EFFECT FROM 1ST JULY 2012. THIS STATUTORY PROVISION IS AS FOLLOWS: 234E. FEE FOR DEFAULTS IN FURNISHING STATEMENTS (1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEME NT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUBSECTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM OF TWO HUNDRED RUPEES FOR EVERY DAY DURI NG 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 STAT EMENT IN ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 6 - ACCORDANCE WITH SUB-SECTION (3) OF SECTION 200 OR T HE PROVISO TO SUB- SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER THE 1ST DAY OF JULY, 2012. 6. WE MAY ALSO REPRODUCE THE SECTION 200A WHICH WA S INSERTED BY THE FINANCE ACT 2009 WITH EFFECT FROM 1ST APRIL 2010. T HIS STATUTORY PROVISION, AS IT STOOD AT THE RELEVANT POINT OF TIME, WAS AS FOLL OWS: 200A: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT S OURCE (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE, O R A CORRECTION STATEMENT, HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAF TER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUCH STATEM ENT SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE STATEMENT; OR (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMAT ION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF AMOUNT COMPUTED U NDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 AND SECTI ON 201, AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C); AND ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 7 - (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL 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 YE AR IN WHICH THE STATEMENT IS FILED. EXPLANATION : FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHA LL 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 SOUR CE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY DETERMINE THE T AX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE S AID SUBSECTION. 7. BY WAY OF FINANCE ACT 2015, AND WITH EFFECT FROM 1ST JUNE 2015, THERE IS AN AMENDMENT IN SECTION 200A AND THIS AMENDMENT, AS ST ATED IN THE FINANCE ACT 2015, IS AS FOLLOWS: IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECTI ON (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WIT H EFFECT FROM THE 1 ST DAY OF JUNE, 2015, NAMELY: (C) THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 234E; (D) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE DEDUCTOR SHALL BE DETERMINED AFTER ADJUSTMENT OF THE AMOUNT COMPUT ED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST ANY AMOUNT PAID UNDER SECTIO N 200 OR SECTION 201 OR SECTION 234E AND ANY AMOUNT PAID OTHERWISE BY WAY O F TAX OR INTEREST OR FEE; ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 8 - (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AN D SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR. 8. IN EFFECT THUS, POST 1ST JUNE 2015, IN THE COUR SE OF PROCESSING OF A TDS STATEMENT AND ISSUANCE OF INTIMATION UNDER SECTION 200A IN RESPECT THEREOF, AN ADJUSTMENT COULD ALSO BE MADE IN RESPECT OF THE FEE, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTI ON 234E . THERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN APPEAL BEFORE US I S THE INTIMATION UNDER SECTION 200A OF THE ACT, AS STATED IN SO MANY WORDS IN THE IMPUGNED INTIMATION ITSELF, AND, AS THE LAW STOOD, PRIOR TO 1ST JUNE 2015, THERE WAS NO ENABLING PROVISION THEREIN FOR RAISING A DEMAND IN RESPECT OF LEVY OF FEES UNDER SECTION 234E. WHILE EXAMINING THE CORRECTNESS OF THE INTIMATION UNDER SECTION 200A, WE HAVE TO BE GUIDED BY THE LIMITED M ANDATE OF SECTION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITTED COM PUTATION OF AMOUNT RECOVERABLE FROM, OR PAYABLE TO, THE TAX DEDUCTOR A FTER MAKING THE FOLLOWING ADJUSTMENTS: (A). AFTER MAKING ADJUSTMENT ON ACCOUNT OF ARITHME TICAL ERRORS AND INCORRECT CLAIMS APPARENT FROM ANY INFORMATION IN THE STATEMENT - SECTION 200A(1)(A) (B). AFTER MAKING ADJUSTMENT FOR INTEREST, IF ANY, COMPUTED ON THE BASIS OF SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT. - SECTION 200A(1)(B) 9. NO OTHER ADJUSTMENTS IN THE AMOUNT REFUNDABLE T O, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBLE IN ACCORDA NCE WITH THE LAW AS IT EXISTED AT THAT POINT OF TIME. 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSI DERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDEED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED U NDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246 A(A), AND, THEREFORE, THE CIT(A) OUGHT TO HAVE EXAMINED LEGALITY OF THE ADJUS TMENT 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 T HE BASIS OF THE PROVISIONS OF ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 9 - 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 A DMITTED POSITION THAT IN THE ABSENCE OF THE ENABLING PROVISION UNDER SECTION 200 A, 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 WITH IN ONE YEAR FROM THE END OF THE FINANCIAL YEAR WITHIN WHICH THE RELATED TDS STA TEMENT IS FILED, AND AS THE RELATED TDS STATEMENT WAS FILED ON 19TH FEBRUARY 20 14, 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 TH E CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234 E IS UNSUSTAINABLE IN LAW. W E, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED L EVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GETS THE RELIEF ACCOR DINGLY. 4. THE COORDINATE BENCH OF THIS TRIBUNAL (ITAT AHME DABAD BENCH SMC AHMEDABAD) IN THE CASE OF LIONS CLUB OF NORTH SURAT CHARITABLE TRUST VS. ITO IN ITA NOS.3274, 3275 & 3276/AHD/2014 FOR AY 2013-14 VIDE ORDER DATED 03/09/2015 HAD ALLOWED THE ASSESSE ES APPEALS BY FOLLOWING THE DECISION OF ITAT AMRITSAR BENCH IN TH E CASE OF SIBIA HEALTHCARE PRIVATE LTD.A VS. DCIT(SUPRA). 5. SINCE THERE IS NO CHANGE INTO THE FACTS AND CI RCUMSTANCES IN THE PRESENT CASE IS POINTED OUT BY THE REVENUE, THEREFO RE RESPECTFULLY FOLLOWING THE AFORESAID DECISION(S) OF COORDINATE B ENCH, WE DIRECT THE AO TO DELETE THE LATE FILING FEE OF TDS RETURN U/S. 234E OF THE ACT IN BOTH THE APPEALS. THUS, GROUNDS RAISED IN THE ASSESSEE S APPEALS ARE ALLOWED. ITA NOS.3227 & 3228 /AHD/201 5 SMT. ANISHA SHIRISHKUMAR MODI VS. DCIT ASST.YEAR 2013-14 - 10 - 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSE E I.E. ITA NOS.3227 & 3228/AHD/2015 FOR AY 2013-14 ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 10 TH DAY OF FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (.. ) ( ) ( N.K. BILLAIYA) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 10/ 02 /2016 5-.., +.../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '(#& / THE RESPONDENT. 3. 67 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-8, AHMEDABAD 5. 9+: '67 , - 671 , / DR, ITAT, AHMEDABAD 6. :<= >, / GUARD FILE. / BY ORDER, (9 ' //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 8.2.16(COPIED MATTER) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..9.2.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 10.2.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 10.2.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER