FORESIGHT HOLDINGS, MUMBAI V. DCIT (TDS) CPC, GHAZIABAD

ITA 3938/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7814 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 24-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Non compliance; Right to appeal
• Section: 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'I' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 3938/MUM/2015 (ASSESSMENT YEAR: 2013-14) M/S. FORESIGHT HOLDINGS VS. DCIT (TDS) CPC #11, 2 ND FLOOR, ISMAIL MANSION 94/96/98 BAZARGATE, FORT MUMBAI 400001 AAYAKAR BHAVAN SECTOR 3, VYSHALI GHAZIABAD 201010 PAN AACFF9466H APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI SAURABH KUMAR RAI DATE OF HEARING: 01.03.2017 DATE OF PRONOUNCEMENT: 15.03.2017 O R D E R PER JASON P. BOAZ, A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)- 59, MUMBAI DATED 06.04.2015 FOR A.Y. 2013-14. 2. IN THIS APPEAL, THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - THE LEARNED CIT APPEALS WAS NOT JUSTIFIED IN DISMI SSING THE APPEAL FILED BY THE APPELLANT ON THE FOLLOWING GROUNDS A THE ORDER PASSED BY THE CIT(A)-59, MUMBAI STATES THAT SHRI RAVINDRAN CA WAS PRESENT FOR THE APPELLANT. HOWEVER , IN PARA 2 OF THE ORDER IT IS STATED THAT NONE ATTENDED AND NO WRITTEN SUBMISSION WAS FILED WHICH IS SELF CONTRADICTORY. B THE DELAY IN DOWNLOAD OF CSI FILES AFTER E-PAYMEN T IS BEING MADE IS BEYOND THE CONTROL OF THE APPELLANT AND AS SUCH LEVY OF PENALTY FOR THE SAME IS UNJUSTIFIED. C THE APPELLANT RELIES IN THE JUDGEMENT PRONOUNCED BY THE HON. AMRITSAR BENCH OF THE ITAT IN THE CASE OF SIBIA HEA LTHCARE PVT. LTD. (I.T.A NO. 90/ASR/2015) OF 9 TH JUNE, 2015 WHEREIN IT WAS HELD THAT THE LEVY OF FEES U/S 234E WAS BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED U/S 200A AT TH E RELEVANT POINT OF TIME. ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 2 THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND /MO DIFY OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 3. THE SOLE CONTROVERSY INVOLVED IN THIS APPEAL IS AS TO WHETHER OR NOT FEES UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') IN RESPECT OF DEFAULTS IN FURNISHING OF TDS STATEMENTS COULD BE LEVIED IN THE INTIMATION UNDER SECTION 200A OF THE ACT FOR THE PE RIOD PRIOR TO 01.06.2015 WHILE PROCESSING TDS RETURNS. 4. IN THIS APPEAL NONE WAS PRESENT ON BEHALF OF THE AS SESSEE WHEN THE APPEAL WAS CALLED FOR HEARING ON 02.03.2017 NOR WAS ANY ADJOURNMENT SOUGHT ON ITS BEHALF. WE, HOWEVER, PROCEED TO DISPO SE OFF THIS APPEAL WITH THE ASSISTANCE OF THE LEARNED D.R. FOR REVENUE AND THE MATERIAL FACTS ON RECORD AS, ADMITTEDLY, IDENTICAL ISSUE IS COVERED I N FAVOUR OF THE ASSESSEE BY THE DECISION OF THE COORDINATE BENCH OF THIS TRI BUNAL IN THE CASE OF KASH REALTORS PVT. LTD. AND OTHERS IN ITA NO. 4199/ MUM/2015 DATED 27.07.2016 TO WHICH ONE OF US IS PARTY. SIMILAR VIE W WAS TAKEN BY US IN THE CASE OF SPRINGTIME CLUBS & HOSPITALITY SERVICES P. LTD. IN ITA NO. 4744/MUM/2016 DATED 01.03.2017. 5. IN THE DECISION OF THE COORDINATE BENCH IN THE CASE OF KASH REALTORS PVT. LTD. IN ITA NO. 4199/MUM/2014 DATED 27.07.2016 FOR A.Y. 2013-14, THE BENCH AT PARS 4 TO 11 THEREOF, HAVE HELD IN FAV OUR OF THE ASSESSEE HOLDING AS UNDER: - 4. NOW COMING TO THE FACTS OF THESE CASES, IN THE COURSE OF THE PROCESSING OF THE TDS RETURNS, THE ASSESSING OFFICE R (TDS) [HEREINAFTER REFERRED TO AS THE AO(TDS)] RAISED DEMAND IN EACH O F THE ABOVE CASES BY WAY OF AN INTIMATION ISSUED UNDER SECTION 200A O F THE ACT FOR LEVY OF FEES UNDER SECTION 234E FOR DELAY IN FILING OF T DS STATEMENT BEYOND THE PERIOD STIPULATED AS PER THE PROVISIONS OF SECT ION 200(3) OF THE ACT. AGGRIEVED BY THIS LEVY OF FEES, THE RESPECTIVE ASSE SSEES CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. BEING AGGRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSE SSEES IN THE ABOVE CAPTIONED APPEALS HAVE COME IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O PERUSED THE MATERIAL ON RECORD. THE CONTENTION OF THE LD. RESP ECTIVE COUNSELS FOR THE ASSESSEES HAS BEEN THAT THIS ISSUE HAS ALREADY BEEN CONSIDERED BY THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE O F SIBIA HEALTHCARE PVT. LTD. VS. DCIT (2015) 171 TTJ (ASR) 0145 WHERE IN THE AMRITSAR ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 3 BENCH OF THE TRIBUNAL HAS HELD THAT SINCE THE INTIM ATION UNDER SECTION 200A IS AN APPEALABLE ORDER BEFORE THE LD. CIT(A) ( W.E.F. 1.7.2012) UNDER SECTION 246A(A) AND THEREFORE THE LD. CIT(A) COULD HAVE EXAMINED THE VALIDITY OF THE ADJUSTMENTS MADE UNDER THE INTIMATION UNDER SECTION 200A IN THE LIGHT AND SCOPE OF THE PR OVISIONS OF SECTION 200A. THE TRIBUNAL FURTHER OBSERVED THAT SINCE THE RE WAS NO ENABLING PROVISION UNDER SECTION 200A BEFORE 01.06. 15 PROVIDING FOR THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SEC TION 234E WHILE PROCESSING THE TDS STATEMENTS, HENCE IN THE ABSENCE OF SUCH AN ENABLING PROVISION, NO SUCH LEVY COULD BE AFFECTED. THE PROVISION FOR MAKING ADJUSTMENTS REGARDING FEES LEVIABLE UNDER SE CTION 234E HAS BEEN INTRODUCED BY WAY OF AMENDMENT MADE VIDE FINAN CE ACT, 2015 W.E.F. 01.06.15 ONLY. THE TRIBUNAL THEREFORE HELD THAT THE ACTION OF THE AO IN MAKING ADJUSTMENTS WITH REGARD TO THE FEE S LEVIABLE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEMENTS UN DER SECTION 200A FOR THE PERIOD PRIOR TO 1.6.2015, WAS NOT LEGA LLY VALID. IT HAS THEREFORE BEEN CONTENDED ON BEHALF OF THE AS SESSEES THAT THE TDS STATEMENTS FILED BY THE ASSESSEE HAS TO BE PROCESSED IN THE MANNER AS LAID DOWN IN THE PROVISIONS OF SECTION 20 0A AS IN FORCE DURING THE RELEVANT PERIOD. THAT THE LEVY OF FEES UNDER SECTION 234E OF THE ACT, THUS, CANNOT BE A SUBJECT MATTER OF PRO CESS, WHILE PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT SO FAR AS THE PERIOD PRIOR TO 01.06.15 IS CONCERNED. 6. THE LD. D.R., ON THE OTHER HAND, HAS RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKAN T KUNDALIA VS. UNION OF INDIA DATED 09.02.15 WHICH DECISION HAS B EEN RELIED UPON BY THE LD. CIT(A) IN THE IMPUGNED ORDER WHEREIN THE JURISDICTIONAL HONBLE BOMBAY HIGH COURT HAS UPHELD THE CONSTITUTI ONAL VALIDITY OF SECTION 234E. THE LD. D.R. HAS FURTHER SUBMITTED TH AT, EVEN OTHERWISE, THE SECTION 234E OF THE ACT IS AN INDEPE NDENT SECTION AND THE AO (TDS) HAS OTHERWISE JURISDICTION TO LEVY PEN ALTY FOR DELAY IN FILING TDS STATEMENTS AS PROVIDED UNDER SECTION 200 (3) OF THE ACT. IT HAS THEREFORE BEEN CONTENDED THAT THE AO(TDS) HAS R IGHTLY EXERCISED HIS JURISDICTION WHILE MAKING ADJUSTMENT OF THE FEE S LEVIABLE UNDER SECTION 234E FOR NON COMPLIANCE/DELAY IN FILING THE TDS STATEMENTS AS PROVIDED UNDER SECTION 200(3) OF THE ACT. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE CASE LAWS CITED BEFORE US. SO FAR AS THE RELIA NCE OF THE REVENUE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) IS CONCERNED, WE FIND THAT IN THE SAID CASE THE CONSTITUTIONAL VALID ITY OF SECTION 234E WAS CHALLENGED. THE HONBLE BOMBAY HIGH COURT HAS UPHELD THE VALIDITY OF THE SECTION 234E. HOWEVER, THE ISSUE W HETHER THE FEES LEVIABLE UNDER SECTION 234E CAN BE ADJUSTED WHILE P ROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT IN RELATIO N TO THE PERIOD PRIOR TO 01.06.15, HAS NEITHER BEEN RAISED BEFORE THE HON BLE BOMBAY HIGH COURT NOR HAS BEEN ADJUDICATED. HENCE, THE RELIANC E OF THE REVENUE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 4 RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) SO FAR AS THE ISSUE IS CONCERNED, IS OF NO HELP TO THE REVENUE. ONE OF THE CONTENTIONS RAISED BEFORE THE HONBLE BOMBAY HIGH COURT WAS THA T UNDER THE PROVISIONS OF THE ACT, NO APPEAL IS PROVIDED FOR OR FROM AN ARBITRARY ORDER PASSED UNDER SECTION 234E OF THE ACT. THE HO NBLE BOMBAY HIGH COURT OBSERVED THAT A RIGHT OF APPEAL IS NOT A MATTER OF RIGHT BUT IS A CREATURE OF STATUTE AND IF THE LEGISLATURE DEE MS IT FIT NOT TO PROVIDE A REMEDY OF APPEAL, SO BE IT. THE HONBLE BOMBAY H IGH COURT HAS OBSERVED THAT EVEN IN SUCH A SCENARIO, THE AGGRIEVE D PARTY IS NOT LEFT REMEDILESS RATHER SUCH AGGRIEVED PERSON CAN ALWAYS APPROACH THE HONBLE HIGH COURT IN EXTRAORDINARY EQUITABLE JURIS DICTION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA, AS TH E CASE MAY BE. 8. HOWEVER, IN THE CASES BEFORE US, THE GRIEVANCE O F THE ASSESSEES IS NOT AGAINST THE LEVY OF FEES UNDER SECTION 234E OF THE ACT INDEPENDENTLY RATHER, THE ISSUE IS THAT WHILE PROCE SSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT, WHETHER O R NOT, THE FEES LEVIABLE UNDER SECTION 234E CAN BE ADJUSTED THEREIN ? NO DOUBT, THE ORDER PASSED UNDER SECTION 200A IS AN APPEALABLE OR DER BEFORE THE LD. CIT(A) UNDER SECTION 246 OF THE ACT (W.E.F. 1.7 .2012). THE APPELLATE ORDER OF THE LD. CIT(A) PASSED UNDER 250 OF THE ACT IS FURTHER APPEALABLE BEFORE THIS TRIBUNAL UNDER SECTI ON 253 OF THE ACT. HENCE, WE DO NOT FIND ANY ILLEGALITY IN THE COURSE ADOPTED BY THE ASSESSEES OF INVOKING THE APPEALABLE JURISDICTION O F THIS TRIBUNAL FOR REDRESSAL OF THEIR GRIEVANCE ON THIS ISSUE. 9. SO FAR AS THE ISSUE WHETHER FOR THE PERIOD PRIOR TO 01.06.15, SUCH ADJUSTMENT CAN BE MADE WHILE PROCESSING THE STATEME NTS UNDER SECTION 200A OF THE ACT IS CONCERNED, WE FIND THAT THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF SIBIA HEALTHCARE PV T. LTD. VS. DCIT (SUPRA) HAS HELD THAT IN THE ABSENCE OF ENABLING PR OVISION UNDER SECTION 200A PRIOR TO 01.06.15 SUCH A POWER WAS NOT VESTED WITH THE AO (TDS). THE SAID DECISION HAS BEEN FURTHER FOLLO WED BY THE AHMEDABAD BENCH OF THE TRIBUNAL IN A RECENT DECISIO N DATED 05.02.16 IN THE CASE OF VARUN RADIATORS PVT. LTD. VS DCIT (CPC- TDS) 2016-TIOL-436-ITAT-AHM. HOWEVER, WE HAVE COME ACROSS ANOTHER DECISION OF THE CHENNAI BENCH DATED 10.07.1 5 IN THE CASE OF SMT. G. INDHIRANI & OTHERS VS. DCIT, CPC-TDS IN I TA NO.109/MAS/ 2015 & OTHERS WHEREIN THE CHENNAI BENCH OF THE TRIB UNAL HAS CONSIDERED THE DECISION OF THE AMRITSAR BENCH OF TH E TRIBUNAL IN THE CASE OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT (SUPR A) AND HAS ARRIVED AT A SIMILAR FINDING THAT UNDER SECTION 200A, IN TH E ABSENCE OF ENABLING PROVISION FOR THE PERIOD BEFORE 01.06.15, THE LEVY OF FEE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEME NTS WAS NOT PERMISSIBLE TO THE AO (TDS). HOWEVER, THE CO-ORDIN ATE CHENNAI BENCH OF THE TRIBUNAL HAS ALSO EXAMINED THE OTHER CONTENT ION OF THE REVENUE THAT SECTION 234E IS AN INDEPENDENT SECTION AND THE FEES CAN BE LEVIED BY THE AO (TDS), INDEPENDENT OF THE PROVISIO NS OF SECTION 200A, FOR THE DEFAULT/DELAY IN FILING THE TDS STATEMENTS AS PRESCRIBED UNDER SECTION 200(3) OF THE ACT. THE TRIBUNAL, CONSIDERI NG THE ABOVE ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 5 SUBMISSIONS, HELD THAT IF THE ASSESSEE FAILS TO PAY THE FEES BEFORE FILING THE STATEMENT UNDER SECTION 200(3) OF THE AC T, THE ASSESSING AUTHORITY MAY PASS A SEPARATE ORDER LEVYING OF SUCH A FEE UNDER SECTION 234E OF THE ACT, IF THE SAME IS NOT BARRED BY TIME LIMIT OR OTHERWISE UNDER ANY OTHER PROVISIONS OF LAW. THE A SSESSING AUTHORITY, HOWEVER, COULD NOT ADJUST THE FEES LEVIA BLE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEMENT UNDER SECTI ON 200A OF THE ACT. HOWEVER, AFTER 01.06.15 THE ASSESSING AUTHORI TY IS WELL WITHIN HIS LIMIT TO LEVY FEE UNDER SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE STATEMENT UNDER SECTION 200A AND MAK ING ADJUSTMENT. THE RELEVANT PART OF THE DECISION OF THE CHENNAI BE NCH OF THE TRIBUNAL FOR THE SAKE OF COMPLETENESS IS REPRODUCED AS UNDER : 4. THE LD.COUNSEL INVITED OUR ATTENTION TO SECTION 234A OF THE ACT AND SUBMITTED THAT WHEN AN ASSESSEE FAILS TO DE LIVER THE STATEMENT WITHIN THE PRESCRIBED TIME, THE ASSESSEE IS LIABLE TO PAY BY WAY OF FEE A SUM OF Z200/- FOR EVERY DAY DUR ING SUCH A PERIOD THE FAILURE CONTINUES. REFERRING TO THE WORD USED IN THE SECTION 234E 'HE SHALL BE LIABLE TO PAY', THE LD.CO UNSEL POINTED OUT THAT THE ASSESSEE IS LIABLE TO PAY FEE. HOWEVER , IT DOES NOT EMPOWER THE ASSESSING OFFICER TO LEVY THE FEE. SECT ION 234E(3) OF THE ACT PROVIDES FOR PAYMENT OF THE FEE BEFORE DELI VERY OF STATEMENT UNDER SECTION 200(3) OF THE ACT. THEREFOR E, THE FEE HAS TO BE PAID BY THE ASSESSEE VOLUNTARILY BEFORE FILIN G THE STATEMENT UNDER SECTION 200(3) OF THE ACT AND THE ASSESSING A UTHORITY HAS NO POWER TO LEVY THE FEE. 5. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT SECTION 234E OF THE ACT PROVIDES FOR PAYMENT OF FEE, IF THE ASSESSEE FAILS TO DELIVE R THE STATEMENT AS PRESCRIBED IN SECTION 200(3) OF THE ACT. THEREFO RE, THE ASSESSING OFFICER HAS EVERY AUTHORITY TO LEVY FEE E ITHER BY A SEPARATE ORDER OR WHILE PROCESSING THE STATEMENT UN DER SECTION 200A OF THE ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. SECTION 20 0A OF THE ACT PROVIDES FOR PROCESSING OF THE STATEMENT OF TAX DED UCTED AT SOURCE BY MAKING ADJUSTMENT AS PROVIDED IN THAT SEC TION. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE PROV ISIONS OF SECTION 200A OF THE ACT:- '200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SO URCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDU CTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUC TOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLO WING 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 ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 6 (II) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMATION I N 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 AM OUNT COMPUTED UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID U NDER SECTION 200 AND SECTION 201, AND ANY AMOUNT PAID OT HERWISE 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 FI NANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION -FOR THE PURPOSES OF THIS SUB-SECTION, 'ART INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMEN T' SHALL 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 AC T; (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UN DER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PR OCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUS LY DETERMINE THE TAX PAYABLE BY, OR THE REFUND DUE TO, THE DEDUCTOR AS REQUIRED UNDER THE SAID SUB-SECTION. 7. THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTMENT OTHER THAN THE ONE PRESCRIBED ABOVE IN SECTION 200A OF THE ACT. BY FINANCE ACT, 2015, WITH EFFECT FROM 01.06.2015, THE PARLIAMENT A MENDED SECTION 200A BY SUBSTITUTING SUB-SECTION (1) OF CLAUSES (C) TO (E). FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE AMEN DMENT 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 WITH 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 TH E AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) AGAINST AN Y AMOUNT PAID ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 7 UNDER SECTION 200 OR SECTION 201 OR SECTION 234E AN D ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST OR FEE; (E) AN INTIMATION SHALL BE PREPARED OR GENERATED AND SE NT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABL E 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 M AKING ADJUSTMENT IN RESPECT OF THE STATEMENT FILED BY THE ASSESSEE W ITH REGARD TO TAX DEDUCTED AT SOURCE BY LEVYING FEE UNDER SECTION 234 E OF THE ACT. THE PARLIAMENT 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, WHILE PROCESSING STATEMENT UNDER SECTION 200A OF THE ACT, THE ASSESSING OFFICER CANNOT MAKE ANY ADJU STMENT BY LEVYING FEE UNDER SECTION 234E PRIOR TO 01.06.2015. IN THE CASE BEFORE US, THE ASSESSING OFFICER LEVIED FEE UNDER SECTION 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 CONSIDERED 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 SECTI ON 200A OF THE ACT. THEREFORE, SUCH ADJUSTMENT CANNOT STAND IN THE EYE OF LAW. 8. THE NEXT CONTENTION OF THE ASSESSEE IS THAT SECT ION 234E OF THE ACT SAYS THAT THE ASSESSEE 'SHALL BE LIABLE TO PAY' BY WAY OF FEE, THEREFORE, THE ASSESSEE HAS TO VOLUNTARILY PAY THE FEE AND THE ASSESSING OFFICER HAS NO AUTHORITY TO LEVY FEE. THE ARGUMENT OF THE LD.COUNSEL FOR THE ASSESSEE IS VERY ATTRACTIVE AND FANCIFUL. HOWEVER, WE DO NOT FIND ANY SUBSTANCE IN THAT ARGUM ENT. WHEN SECTION 234E CLEARLY SAYS THAT THE ASSESSEE IS LIAB LE 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 PROVID ED UNDER SECTION 234E(1) OF THE ACT BEFORE DELIVERY OF THE STATEMENT UNDER SECTION 200(3) OF THE ACT. IF THE ASSESSEE FAILS TO PAY THE FEE FOR THE PERIODS OF DELAY, THEN THE ASSESSING AUTHORITY HAS ALL THE POWERS TO LEVY FEE WHILE PROCESSING THE STATEMENT UNDER SECTION 200A O F 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 IS THAT LEVY OF FEE UNDER SECTION 2 34E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT S OURCE AND MAKING ADJUSTMENT BEFORE 01 .06.2015. IT DOES NOT M EAN THAT THE ASSESSING OFFICER CANNOT PASS A SEPARATE ORDER UNDE R SECTION 234E OF THE ACT LEVYING FEE FOR THE DELAY IN FILING THE STATEMENT AS REQUIRED UNDER SECTION 200(3) OF THE ACT. 9. THE CONTENTION OF THE ASSESSEE CAN ALSO BE EXAMI NED IN THE LIGHT ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 8 OF THE PROVISIONS OF INDIAN PENAL CODE. SECTION 396 OF INDIAN PENAL CODE PROVIDES FOR PUNISHMENT FOR DACOITY WITH MURDE R. THE PUNISHMENT IS IMPRISONMENT FOR LIFE OR RIGOROUS IMP RISONMENT FOR A TERM WHICH MAY BE EXTENDED TO TEN YEARS AND ALSO LI ABLE TO FINE. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING SECTION 396 OF INDIAN PENAL CODE, HEREUNDER:- '396. DACOITY WITH MURDER - IF ANY ONE OF FIVE OR MORE PERSONS, WHO ARE CONJOINTLY COMMITTING DACOITY, COM MITS MURDER IN SO COMMITTING DACOITY, EVERY ONE OF THOSE PERSONS SHALL BE PUNISHED WITH DEATH, OR IMPRISONMENT FOR L IFE, OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY EXTEND T O TEN YEARS, AND SHALL ALSO BE LIABLE TO FINE.' SIMILARLY, SECTION 408 OF INDIAN PENAL CODE PROVIDE S FOR CRIMINAL BREACH OF TRUST BY A CLERK OR SERVANT. IN ADDITION TO IMPRISONMENT WHICH MAY EXTEND TO SEVEN YEARS, THE ACCUSED WHO IS FOUND TO BE GUILTY SHALL ALSO BE LIABLE TO FINE. SIMILARLY, THE OTHER PROVISIONS OF INDIAN PENAL CODE ALSO SAY THAT IN ADDITION TO IMPR ISONMENT, THE ACCUSED SHALL BE LIABLE TO PAY FINE. THE LANGUAGE U SED BY THE PARLIAMENT IN INDIAN PENAL CODE IS 'SHALL ALSO BE L IABLE TO FINE'. THIS MEANS THAT THE MAGISTRATE OR SESSIONS JUDGE, WHO TR IES THE ACCUSED FOR AN OFFENCE PUNISHABLE UNDER THE PROVISI ONS OF INDIAN PENAL CODE, IN ADDITION TO PUNISHMENT OF IMPRISONME NT, SHALL ALSO LEVY FINE. IF THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEES IS ACCEPTED, THEN THE MAGISTRATE OR SESSIONS JUDGE, AS THE CASE MAY BE, WHO IS TRYING THE ACCUSED FOR THE OFFENCE PUNIS HABLE UNDER INDIAN PENCAL 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 MAGISTRATE OR SESSIONS JUDGE WHO IS TRYING THE OFFENCE PUNISHABLE UNDER THE INDIAN PENAL CODE. THEREFORE, THE CONTENTION OF THE LD.COUNSEL THAT MERELY BECAUSE THE PARLIAMENT HAS USED THE LANGUAGE HE SHALL BE LIABLE TO PAY BY WAY OF FEE', THE ASSESSEE HAS TO P AY THE FEE VOLUNTARILY AND THE ASSESSING OFFICER HAS NO AUTHOR ITY TO LEVY FEE COULD NOT BE ACCEPTED. NO ONE WOULD COME FORWARD TO PAY THE FEE VOLUNTARILY UNLESS THERE IS A COMPULSION 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 ACT. HOWEVER, IF THE ASSESSEE FAILS TO PAY THE FEE BEFOR E FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT, THE ASSE SSING AUTHORITY IS WELL WITHIN HIS LIMIT IN PASSING A SEPARATE ORDER L EVYING SUCH A FEE IN ADDITION TO PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT. IN OTHER WORDS, BEFORE 01.06.2015, THE ASSESSING AU THORITY COULD PASS A SEPARATE ORDER UNDER SECTION 234E LEVYING FE E FOR DELAY IN FILING THE STATEMENT UNDER SECTION 200(3) OF THE AC T. HOWEVER, AFTER 01 .06.2015, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT TO LEVY FEE UNDER SECTION 234E OF THE ACT EVEN WHILE PROCES SING THE STATEMENT UNDER SECTION 200A AND MAKING ADJUSTMENT. ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 9 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS E XCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECTION 234E WHIL E PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFORE, THE IMPUGNED INTIMATION OF THE LOWER AUT HORITIES LEVYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAIN ED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO THE AS SESSING OFFICER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXP IRED. ACCORDINGLY, THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY T HE CIT(APPEALS) IN SOFAR AS LEVY OF FEE UNDER SECTION 234E IS SET A SIDE AND FEE LEVIED IS DELETED. HOWEVER, THE OTHER ADJUSTMENT MA DE BY THE ASSESSING OFFICER IN THE IMPUGNED INTIMATION SHALL STAND AS SUCH. 12. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED AS INDICATED ABOVE. 10. RESPECTFULLY FOLLOWING THE ABOVE PROPOSITION LA ID BY THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF SMT. G. INDHI RANI & OTHERS VS. DCIT, CPC-TDS (SUPRA) AFTER DULY CONSIDERING THE D ECISION OF THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF SIBI A HEALTHCARE PVT. LTD. VS. DCIT (SUPRA), WE HOLD THAT THE AO (TDS) I N THE ABOVE CAPTIONED APPEALS HAS EXCEEDED HIS JURISDICTION IN MAKING ADJUSTMENTS OF FEES LEVIABLE UNDER SECTION 234E WHI LE PROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT. THER EFORE, THE ADJUSTMENTS MADE BY THE LOWER AUTHORITIES OF FEES L EVIABLE UNDER SECTION 234E WHILE PROCESSING THE INTIMATION UNDER SECTION 200A ARE HEREBY SET ASIDE. 11. WITH THE ABOVE OBSERVATIONS, THE IMPUGNED ORDER S OF THE LD. CIT(A) ARE SET ASIDE AND THE ISSUE IS TREATED AS DE CIDED IN FAVOUR OF THE ASSESSEES . 6. FOLLOWING THE ABOVE REFERRED DECISION OF THE COORDI NATE BENCH IN THE CASE OF KASH REALTORS PVT. LTD. & OTHERS IN ITA NO. 4199/MUM/2014 DATED 27.07.2016, WE HOLD THAT THE AMENDMENT TO SEC TION 200A(1) OF THE ACT IS PROSPECTIVE IN NATURE AND THEREFORE THE ASSE SSING OFFICER (AO), WHILE PROCESSING THE TDS STATEMENTS/RETURNS IN THE CASE O N HAND FOR THE PERIOD PRIOR TO 01.06.2015, WAS NOT EMPOWERED TO CHARGE FE ES UNDER SECTION 234E OF THE ACT. THEREFORE, THE INTIMATION ISSUED BY THE AO UNDER SECTION 200A OF THE ACT IN THIS APPEAL IS UNSUSTAINABLE AND THE DEMAND RAISED BY WAY OF CHARGING OF FEES UNDER SECTION 234E OF THE ACT NOT BEING VALID, IS DELETED. IN THIS VIEW OF THE MATTER, WE HOLD THAT THE AO IS NOT EMPOWERED TO CHARGE FEES UNDER SECTION 234E OF THE ACT BY WAY OF INTIMA TION UNDER SECTION 200A OF THE ACT IN RESPECT OF DEFAULTS BEFORE 01.06 .2015 AND CONSEQUENTLY ITA NO. 3938/MUM/2015 M/S. FORESIGHT HOLDINGS 10 SET ASIDE THE ORDERS OF THE LEARNED CIT(A) AND DECI DE THE ISSUE IN FAVOUR OF THE ASSESSEE. CONSEQUENTLY, THE GROUNDS RAISED BY T HE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, THE ASSESSEES APPEAL FOR A.Y. 2013- 14, FOR THE QUARTERS AS STATED THEREIN, IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH, 2017. SD/ - SD/ - (SANJAY GARG) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 15 TH MARCH, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -59, MUMBAI 4. THE CIT-TDS, MUMBAI 5. THE DR, I BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.