COMMITTEE OF RESOURCE ORGANISATION, MUMBAI V. DCIT CPC TDS, MUMBAI

ITA 3850/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3280 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 22-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: VINAYAK S GOKHALE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI BEFORE SHRI R.C. SHARMA, AM AND SHRI SANDEEP GOSAIN , JM ./ I.T. A. NO. 3850/MUM/2015 ( / ASSESSMENT YEAR: 2013-14) COMMITTEE OF RESOURCE ORGANIZATION NEAR CONTAINER YARD, SUMAN NAGAR, SION TROMBAY ROAD, (V.N. PURAV MARG) CHEMBUR MUMBAI-400 071. / VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRALIZED PROCESSING CELL- TDS ./ ./PAN/GIR NO. AAATC 4949C ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI VINAYAK S. GOKHALE / RESPONDENT BY : SHRI NEIL PHILIP / DATE OF HEARING : 21/07/2016 !'# / DATE OF PRONOUNCEMENT : 09/09/2016 $% / O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 06.04.2015 OF COMMISSIONER OF INCOME TAX (APPEALS)-59, MUMBAI (HE REINAFTER CALLED AS THE CIT(A) ) FOR ASSESSMENT YEAR 2013-14ON THE GROUNDS MENTIONED BELOW:- 2 ITA NO.3850/MUM/2015 CORO VS. DY.CIT 1) THE LD. CIT(A) ERRED IN HOLDING THAT THE APPEL LANT/ASSESSEE DEFAULTED IN SUBMITTING THE TDS STATEMENTS IN TIME FOR QUARTER 3 OF FINANCIAL YEAR 2012-13, THEREBY LIABLE TO PAY LATE FILING FEE U/S 234E. 2) THE LD. CIT(A) ERRED BY HOLDING THE VIEW THAT F EE THAT IS SOUGHT TO BE COLLECTED U/S 234 E OF THE ACT, IS REALLY NOTHING BUT A COLLE CTION, FOR THE SPECIAL SERVICE BEING GIVEN TO THE DETECTOR, BY ALLOWING HIM TO FIL E THE TDS STATEMENTS BEYOND THE TIME PRESCRIBED UNDER THE ACT, READ WITH THE RESPEC TIVE RULES FOR THE SAME ACT. 3) (A) THE LD. CIT(A) ERRED BY FOLLOWING THE JUDGEMEN T OF BOMBAY HIGH COURT'S DISMISSING, THE WRIT PETITION FILED CHALLENGING THE JURISDICTION OR COMPETENCE FOR LEVY OF LATE FILING FEE U/S 234E. HOWEVER FOR THE A SSESSEE IN THIS CASE IS ALTOGETHER DIFFERENT, AS PER GROUND NO.2 IN THE GRO UNDS OF APPEAL BEFORE HIS AUTHORITY, IS WITH REGARDS TO TIME OF THE TDS STATE MENT TO BE FILED BY THE DEDUCTOR WHICH WAS DEALT IN THE SPEAKING ORDER PASSED BY HIS JUDICIAL AUTHORITY. (B) UNDER THE PROVISIONS OF SUB-SECTION (3) OF SEC TION 234 E, FEE SHALL HAVE TO BE PAID AT THE TIME OF DELIVERING THE TDS STATEMENT BEFORE THE CONCERNED AUTHORITY. THIS POINT WAS NEVER CONSIDERED BY THE LD.CIT(A) WHILE D ECIDING THE ISSUE OF LATE FEE U/S 234E. (C) ONCE THE SAID TDS STATEMENTS ARE FILED WITHOUT PAYMENT OF FEES U/S 234E, NO SUBSEQUENT RECOVER CAN BE MADE BY THE AUTHORITY, BY ISSUING THE NOTICE OF DEMAND U/S 156. (D) THE SAID PROVISION OF SECTION 200A. THAT PREVA ILED PRIOR TO CHANGES IN FINANCE ACT, 2015, DOES NOT PERMIT PROCESSING OF TDS STATEM ENT FOR 'DEFAULT IN PAYMENT OF LATE FEES' EXCEPT I) ANY ARITHMETICAL ERROR, OR INCORRECT CLAIM, OR II) DEFAULT IN PAYMENT OF INTEREST AND III) TDS PAYABLE OR REFUNDABLE. IV) NO NOTICE OF DEMAND CAN BE ISSUED TO RECOVER L ATE FEE U/S 234E, AS MENTIONED IN ITEM 5 OF THE INTIMATION ISSUED TO THE ASSESSEE DATED 04/03/2014. THUS LATE FEE FOR DELAY IN SUBMISSION OF QUARTERLY STATEMENTS CANNOT BE RECOVERED BY WAY OF PROCESSING U/S 200 A OF THE ACT . 3 ITA NO.3850/MUM/2015 CORO VS. DY.CIT 4) THE PROVISIONS OF SECTION 204 OF THE ACT, HAS M ADE THE PERSON RESPONSIBLE FOR SEC. 190 TO SEC. 203AA, AND SEC. 285, AND HOWEVER THIS W ORDING AND OR PHRASE DOES NOT COVER SEC. 234E AND HENCE COLLECTION OF LATE FE E U/S 234 E IS VOID AB INITIO. 5) THERE IS NO DISPUTE THAT WHAT IS IMPUGNED IN AP PEAL BEFORE US IS 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. 6) AS PER THE LIMITED MANDATE OF SECTION 200A, WHICH, AT THE RELEVANT POINT OF TIME, PERMITTED COMPUTATION OF AMOUNT RECOVERABLE FROM, OR PAYABLE TO, THE TAX DED UCTOR AFTER MAKING ADJUSTMENTS AS ALREADY STATED IN PARAGRAPH 3(D), I) ,II),III) ONLY AND NO OTHER ADJUSTMENTS WERE PERMISSIBLE IN THE AMOUNT REFUNDAB LE TO, OR RECOVERABLE FROM, THE TAX DEDUCTOR, WERE PERMISSIBLE IN ACCORDANCE WI TH THE LAW AS IT EXISTED AT THAT POINT OF TIME. 7) THE LD. CIT(A) HAS NOT GIVEN THE REASONABLE OPP ORTUNITY TO THE ASSESSEE FOR EXPLAINING THE ABOVE GROUNDS ATTACHED TO THE FORM N O. 35, AS THE LATE FEE U/S 234 IS CONFIRMED WITHOUT PROPER HEARING RIGHT TO TH E ASSESSEE/APPELLANT ARBITRARILY. 2. SINCE ALL THE GROUNDS RAISED BY THE ASSESSEE ARE INTER-CONNECTED AND INTER- RELATED THEREFORE, WE THOUGHT IT FIT TO DISPOSE OFF THE SAME THROUGH THE PRESENT COMMON ORDER. THE ONLY EFFECTIVE GROUND OF APPEAL R AISED IS AGAINST LEVYING OF FEE OF RS.53,200/- U/S 234E OF THE ACT. IN THE PRESENT CASE ITO-TDS HAS PASSED ORDER U/S 200A OF I.T. ACT THEREBY DETERMINING SUM OF RS. 53,200/- TO BE PAID BY ASSESSEE VIDE ORDER DATED 04.03.2014. 4 ITA NO.3850/MUM/2015 CORO VS. DY.CIT 3. AGGRIEVED BY THE ORDER OF THE ITO-TDS-1(1)(4), A SSESSEE FILED THE APPEAL BEFORE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE CASE OF THE ASSESSEE HAD DISMISSED THE APPEAL FILED BY THE ASSESSEE VIDE ORD ER DATED 06.04.2015. 4. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE F ILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. 5. AT THE VERY OUTSET, LD. AR REPRESENTING THE ASSE SSEE RELIED UPON THE JUDGMENTS PASSED BY JUDICIAL AUTHORITIES WHEREIN TH E ISSUE WITH REGARD TO THE LEVY OF FEE U/S 234 E OF THE ACT WAS DECIDED. FOLLOWING JUDGMENTS HAVE BEEN REFERRED BY LD. AR IN ITA NOS.1019,1020 &1021/MDS/2015 IN TH E CASE OF SMT. G. INDHIRANI VS. THE DEPUTY COMMISSIONER OF INCOME TAX FOR A.Y. 2013-14, ITA NO.90/ASR/2015 IN THE CASE OF SIBIA HEALTHCARE PRIV ATE LIMITED VS. DY. CIT IN THE A.Y. 2013-14 AND WRIT PETITION NO.771 OF 2014 IN TH E CASE OF MR RASHMIKANT KUNDALIA AND ANOTHER VS. UNION OF INDIA AND OTHERS. 6. FIRST OF ALL WE REFER TO THE ORDER PASSED BY HON BLE ITAT CHENNAI BENCH IN ITA NOS.1019 TO 1021/MDS/2015 AND 1089 TO 1092/MDS/ 2015 WHEREIN IDENTICAL QUESTION WAS IN DISPUTE AND THE HONBLE ITAT IN THE AFORE MENTIONED ITA HAD 5 ITA NO.3850/MUM/2015 CORO VS. DY.CIT DECIDED THE SAID ISSUE. THE OPERATIVE PARA IS REPRO DUCED BELOW FOR THE SAKE OF REFERENCE: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. SECTION 200A OF THE AC T PROVIDES FOR PROCESSING OF THE STATEMENT OF TAX DEDUCTED AT SOURCE BY MAKIN G ADJUSTMENT AS PROVIDED IN THAT SECTION. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE PROVISIONS OF SECTION 200A OF THE ACT:- '200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT S OURCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDU CTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS D EDUCTOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSE D IN THE FOLLOWING MANNER, NAMELY:- (A) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL B E 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 COMP UTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 20 0 AND SECTION 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 PAYABL E BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE (C) ; AND (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. 6 ITA NO.3850/MUM/2015 CORO VS. DY.CIT 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-SEE ION (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 SUB-SECTION. 7. THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTMENT OTHER THAN THE ONE PRESCRIBED ABOVE IN SECTION 200A OF THE ACT. BY FIN ANCE ACT, 2015, WITH EFFECT FROM 01.06.2015, THE PARLIAMENT AMENDED SECT ION 200A BY SUBSTITUTING SUB-SECTION (1) OF CLAUSES (C) TO (E). FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE AMENDMENT MADE IN SECTION 200A BY THE FINANCE ACT, 2015 AS UNDER:- 'IN SECTION 200A OF THE INCOME-TAX ACT, IN SUB-SECT ION (1), FOR CLAUSES (C) TO (E), THE FOLLOWING CLAUSES SHALL BE SUBSTITUTED WIT H EFFECT FROM THE PT 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; (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.' THEREFORE, IT IS OBVIOUS THAT PRIOR TO 01.06.2015, THERE WAS NO ENABLING PROVISION IN SECTION 200A OF THE ACT FOR MAKING ADJ USTMENT IN RESPECT OF THE 7 ITA NO.3850/MUM/2015 CORO VS. DY.CIT STATEMENT FILED BY THE ASSESSEE WITH REGARD TO TAX DEDUCTED AT SOURCE BY LEVYING FEE UNDER SECTION 234E OF THE ACT. THE PARL IAMENT FOR THE FIRST TIME ENABLED THE ASSESSING OFFICER TO MAKE ADJUSTMENT BY LEVYING FEE UNDER SECTION 234E OF THE ACT WITH EFFECT FROM 01.06.2015 . THEREFORE, AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEES, WHIL E PROCESSING STATEMENT UNDER SECTION 200A OF THE ACT, THE ASSESSING OFFICE R CANNOT MAKE ANY ADJUSTMENT BY LEVYING FEE UNDER SECTION 234E PRIOR TO 01.06.2015. IN THE CASE BEFORE US, THE ASSESSING OFFICER LEVIED FEE UN DER 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE UNDER SECTION 200A OF THE ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT THE FEE LEVIED BY THE ASSESSING OFFICER UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE IS BEYOND THE SCOPE OF ADJUSTMENT PROVIDED UNDER SECTION 200A OF THE ACT. THEREFORE, SUCH ADJUSTMENT CANNOT STAND IN THE EYE OF LAW. 8.THE NEXT CONTENTION OF THE ASSESSEE IS THAT SECTI ON 234E OF THE ACT SAYS THAT THE ASSESSEE 'SHALL BE LIABLE TO PAY' BY WAY O F FEE, THEREFORE, THE ASSESSEE HAS TO VOLUNTARILY PAY THE FEE AND THE ASS ESSING OFFICER HAS NO AUTHORITY TO LEVY FEE. THE ARGUMENT OF THE LD.COUNS EL FOR THE ASSESSEE IS VERY ATTRACTIVE AND FANCIFUL. HOWEVER, WE DO NOT FI ND ANY SUBSTANCE IN THAT ARGUMENT. WHEN SECTION 234E CLEARLY SAYS THAT THE A SSESSEE IS LIABLE TO PAY FEE FOR THE DELAY IN DELIVERY OF THE STATEMENT WITH REGARD TO TAX DEDUCTED AT SOURCE, THE ASSESSEE SHALL PAY THE FEE AS PROVIDED UNDER SECTION 234E(1) OF THE ACT BEFORE DELIVERY OF THE STATEMENT UNDER SECT ION 200(3) OF THE ACT. IF THE ASSESSEE FAILS TO PAY THE FEE FOR THE PERIODS O F DELAY, THEN THE ASSESSING AUTHORITY HAS ALL THE POWERS TO LEVY FEE WHILE PROC ESSING THE STATEMENT UNDER SECTION 200A OF THE ACT BY MAKING ADJUSTMENT AFTER 01.06.2015. HOWEVER, PRIOR TO 01.06.2015, THE ASSESSING OFFICER HAD EVERY AUTHORITY TO PASS AN ORDER SEPARATELY LEVYING FEE UNDER SECTION 234E OF THE ACT. WHAT IS NOT PERMISSIBLE THAT LEVY OF FEE UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE AND MAKING ADJUSTMENT BEFORE 01.06.2015. IT DOES NOT MEAN THAT THE ASSESS ING OFFICER CANNOT PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVY ING FEE FOR THE DELAY IN FILING THE STATEMENT AS REQUIRED UNDER SECTION 200( 3) OF THE ACT. THE CONTENTION OF THE ASSESSEE CAN ALSO BE EXAMINED IN THE LIGHT OF THE PROVISIONS OF INDIAN PENAL CODE. SECTION 396 OF IND IAN PENAL CODE PROVIDES FOR PUNISHMENT FOR DACOITY WITH MURDER. TH E PUNISHMENT IS IMPRISONMENT FOR LIFE OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY BE EXTENDED TO TEN YEARS AND ALSO LIABLE TO FINE. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING SECTION 396 OF INDI AN PENAL CODE, HEREUNDER:- 8 ITA NO.3850/MUM/2015 CORO VS. DY.CIT '396. DACOITY WITH MURDER - IF ANYONE OF FIVE OR MO RE PERSONS, WHO ARE CONJOINTLY COMMITTING DACOITY, COMMITS MURDER IN SO COMMITTING DACOITY, EVERYONE OF THOSE PERSONS SHALL BE PUNISHED WITH DE ATH, OR IMPRISONMENT FOR LIFE, OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO TEN YEARS, AND SHALL ALSO BE LIABLE TO FINE.' SIMILARLY, SECTION 408 OF INDIAN PENAL CODE PROVIDE S FOR CRIMINAL EACH OF TRUST BY A CLERK OR SERVANT. IN ADDITION TO IMPRISO NMENT WHICH MAY EXTEND TO SEVEN YEARS, THE ACCUSED WHO IS FOUND TO BE GUIL TY SHALL ALSO BE LIABLE TO FINE. SIMILARLY, THE OTHER PROVISIONS OF INDIAN PEN AL CODE ALSO SAY THAT IN ADDITION TO IMPRISONMENT, THE ACCUSED SHALL BE LIAB LE TO PAY FINE. THE LANGUAGE USED BY THE PARLIAMENT IN INDIAN PENAL COD E IS 'SHALL ALSO BE LIABLE TO FINE'. THIS MEANS THAT THE MAGISTRATE OR SESSIONS JUDGE, WHO TRIES THE ACCUSED FOR AN OFFENCE PUNISHABLE UNDER THE PRO VISIONS OF INDIAN PENAL CODE, IN ADDITION TO PUNISHMENT OF IMPRISONMENT, SH ALL ALSO LEVY FINE. IF THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS A CCEPTED, THEN THE MAGISTRATE OR SESSIONS JUDGE, AS THE CASE MAY BE, W HO IS TRYING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER INDIAN PEN AL CODE, MAY NOT HAVE AUTHORITY TO LEVY FINE. 10. IT IS WELL KNOWN PRINCIPLE THAT THE FINE PRESCR IBED UNDER THE INDIAN PENAL CODE HAS TO BE LEVIED BY THE CONCERNED MAGIST RATE OR SESSIONS JUDGE WHO IS TRYING THE OFFENCE PUNISHABLE UNDER THE INDI AN PENAL CODE. THEREFORE, THE CONTENTION OF THE LD. COUNSEL THAT M ERELY BECAUSE THE PARLIAMENT HAS USED THE LANGUAGE 'HE SHALL BE LIABL E TO PAY BY WAY OF FEE', THE ASSESSEE HAS TO PAY THE FEE VOLUNTARILY AND TH E ASSESSING OFFICER HAS NO AUTHORITY TO LEVY FEE COULD NOT BE ACCEPTED. NO ONE WOULD COME FORWARD TO PAY THE FEE VOLUNTARILY UNLESS THERE IS A COMPULSIO N UNDER THE STATUTORY PROVISION. THE PARLIAMENT WELCOMES THE CITIZENS TO COME FORWARD AND COMPLY WITH THE PROVISIONS OF THE ACT BY PAYING THE PRESCRIBED FEE BEFORE FILING THE STATEMENT UNDER SECTION 200(3) OF THE AC T. HOWEVER, IF THE ASSESSEE FAILS TO PAY THE FEE BEFORE FILING THE STA TEMENT UNDER SECTION 200(3) OF THE ACT, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT IN PASSING A SEPARATE ORDER LEVYING SUCH A FEE IN ADDITION TO PR OCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT. IN OTHER WORDS, BEFO RE 01.06.2015, THE ASSESSING AUTHORITY COULD PASS A SEPARATE ORDER UND ER SECTION 234E LEVYING FEE FOR DELAY IN FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT. HOWEVER, AFTER 01.06.2015, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT TO LEVY FEE UNDER SECTION 234E OF THE ACT EVEN WHIL E PROCESSING THE STATEMENT UNDER SECTION 200A AND MAKING ADJUSTMENT . 9 ITA NO.3850/MUM/2015 CORO VS. DY.CIT 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS EXCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECTION 234E WHILE PROCESSING THE STATEME NT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFORE , THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LEVYING FEE UND ER SECTION 234E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO THE ASSESSING OFFICER TO PASS A SEPARATE ORDER UNDE R SECTION 234E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIMATION UNDER SECTION 200A AS C ONFIRMED BY THE CIT(APPEALS) IN SOFAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED IS DELETED. HOWEVER, THE OTHER ADJUSTMENT MA DE BY THE ASSESSING OFFICER IN THE IMPUGNED INTIMATION SHALL STAND AS S UCH. 12. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED AS INDICATED ABOVE. 4. SINCE THE FACTS OF THE PRESENT CASE AND THE POIN T IN ISSUE INVOLVED IN THE PRESENT CASE ARE IDENTICAL TO THE POINT IN ISSUE DE CIDED BY HONBLE ITAT CHENNAI BENCH THEREFORE WE RESPECTFULLY FOLLOWING THE AFORE MENTIONED DECISION OF THE CO- ORDINATE BENCH AND IN ORDER TO MAINTAIN JUDICIAL CO NSISTENCY ALLOW THE APPEAL OF THE ASSESSEE AND SET ASIDE THE IMPUGNED ORDER PASSED BY CIT(A), THEREBY UPHOLDING THE ORDER OF AO IN LEVYING FEE U/S 234A OF THE IT A CT IS NOT SUSTAINABLE IN LAW. THEREFORE THIS GROUND OF APPEAL RAISED BY ASSESSEE ARE ALLOWED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9TH SEPTEMBER , 2016 SD/- SD/- (R.C. SHARMA ) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED : 09.09.2016 PS. ASHWINI 10 ITA NO.3850/MUM/2015 CORO VS. DY.CIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI.