DINSHI AMPOULE MAKERS P.LTD, MUMBAI V. DCIT (TDS) CEN CPC GHAZIABAD PROCESSING CEL , GHAZIABAD, UTTAR PRADESH

ITA 4284/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2733 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 10-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SATHYA MOORTHY
• Keywords: Non compliance; Right to appeal
• Section: 246; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, JUDICIAL MEMBER / I .TA NOS.4284 & 4285/MUM/2015 ( / ASSESSMENT YEARS: 2013-14 & 2014-15 M/S. DINSHI AMPOULE MAKERS PVT. LTD., A-37, KAPOR HOUSE, ROAD NO. 2, MIDC, ANDHERI (E), MUMBAI-400 093 / VS. THE DCIT (TDS), CENTRALIZED PROCESSING CELL AAYAKAR BHAVAN, SECTOR-3, VAISHALI, GHAZIABAD U.P. -201 010 ./ ./ PAN/GIR NO.AAACD 1725E ( / APPELLANT ) .. ( / RESPONDENT ) / ASSESSEE BY: SHRI SHEKHAR GUPTA / REVENUE BY: SHRI N. SATHYA MOORTHY / DATE OF HEARING :20.07.2016 ! / DATE OF PRONOUNCEMENT :23.09.2016 / O R D E R PER C.N. PRASAD, JM: THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAIN ST THE ORDERS OF THE LD. CIT(A)-59, MUMBAI DATED 22.04.2015 PERTA INING TO ASSESSMENT YEAR 2013-14 & 2014-15. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN BOTH THESE APPEALS IS THAT THE LD. CIT(A) ERRED IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER IN CHARGING LATE FILING FEE U/S. 234E OF THE ACT WHILE PASSING INTIMATION U/S. 200A OF THE ACT. ITA NOS.4284 & 4285/M/2015 2 3. THE APPEALS ARE BARRED BY LIMITATION BY 12 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE REASONS AS TO WHY THE APPEAL COULD NOT BE FILED IN TIME. ON GOING THROUGH THE P ETITION FOR CONDONATION AND AFFIDAVIT, WE FIND THAT THERE IS R EASONABLE CAUSE FOR SHORT DELAY IN FILING APPEALS. HENCE THE DELAY IS CONDONED AND APPEALS ARE ADMITTED. 4. BRIEF FACTS ARE THAT THE ASSESSING OFFICER WHILE PASSING INTIMATION U/S.200A OF THE I.T. ACT CHARGED LATE FI LING FEE U/S. 234E IN RESPECT OF QUARTERLY STATEMENTS OF TDS IN FORM NO. 26Q. 5. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). HOWEVER, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT THE ISSUE IS COVERED BY THE DECISION OF THE HO NBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UNION O F INDIA DATED 9.2.2015. 6. THE LD. COUNSEL FOR THE ASSESSEE BEFORE US REFE RRING TO SECTION 200A OF THE ACT SUBMITS THAT CLAUSES (C) TO (F) OF SUB-SECTION (1) OF SECTION 200A WERE SUBSTITUTED BY THE FINANCE ACT 20 15 W.E.F. 1.6.2015 AND ONLY IN THE NEWLY SUBSTITUTED CLAUSES (C) & (D) IT WAS PROVIDED THAT FEE SHALL BE COMPUTED IN ACCORDANCE W ITH THE PROVISIONS OF SEC. 234E OF THE ACT. THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT PRIOR TO 1.6.2015 SINCE THE E NABLING PROVISION FOR LEVY OF FEE IN THE PROVISIONS OF SEC. 200A WAS NOT IN EXISTENCE, NO FEE IS CHARGEABLE U/S. 234E OF THE ACT PRIOR TO 1.6 .2015. FOR THIS PROPOSITION HE PLACES RELIANCE ON THE DECISION OF C HENNAI BENCH IN ITA NOS.4284 & 4285/M/2015 3 THE CASE OF SMT. G. INDHIRANI VS DCIT (172 TTJ 239 ) AND THE DECISION OF AMRITSAR BENCH IN THE CASE OF SIBIA HEALTHCARE ( P) LTD VS DCIT (TDS) ( 63 TAXMAN.COM 333). 7. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTS THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISIONS RELIED ON. WE FIND THAT A SIMILAR ISSUE HAS ARISEN IN A BUNCH OF APPEALS NAMELY M/S. KASH REALTORS PVT. LTD & OTHERS IN ITA NOS. 4199/M/2015 DATED 27.7.201 6 WHEREIN THE CO-ORDINATE BENCH CONSIDERING VARIOUS DECISIONS INC LUDING THE JURISDICTIONAL DECISION WHICH THE CIT(APPEALS) RELI ED ON I.E. RASHMIKANT KUNDALIA VS UNION OF INDIA DATED 9.2.201 5 HELD AS UNDER: IN THIS BUNCH OF 17 APPEALS, THE SOLE ISSUE INVOLV ED IS AS TO WHETHER OR NOT, FOR THE PERIOD PRIOR TO 01.06.15, F EES UNDER SECTION 234E OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFER RED TO AS THE ACT) IN RESPECT OF DEFAULTS IN FURNISHING TDS STATE MENTS, COULD BE LEVIED IN INTIMATION UNDER SECTION 200A OF THE ACT. 2. IN SOME OF THE APPEALS THERE IS A REPRESENTATION BY THE LD. COUNSEL/AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE. HOWEVER, IN SOME OF APPEALS, NONE HAS COME PRESENT AND ADJOURNMENT HAS BEEN SOUGHT. HOWEVER, CONSIDERING THE SHORT AND COMMON ISSUE INVOLVED IN ALL THE APPEALS WHICH CAN BE ADJUDICATED ON THE BASIS OF ONLY A FEW MATERIAL FACTS, WE PROCE ED TO DECIDE THE APPEALS REJECTING THE ADJOURNMENT APPLICATIONS, IF ANY, MOVED IN ANY OF THE ABOVE CAPTIONED APPEALS. 3. IN ALL THESE CASES, THERE WAS ADMITTEDLY A DELAY IN FILING OF THE TDS RETURNS. THE PERIOD INVOLVED IS AFTER 01.0 7.12, BUT PRIOR TO 01.06.15. THESE DATES ARE RELEVANT BECAUSE 1.7.201 2 IS THE DATE OF INSERTION OF SECTION 234E INTO THE INCOME TAX ACT, 1961 WHEREAS 1.6.2015 IS THE DATE OF AMENDMENT/SUBSTITUTION OF C LAUSE (C) TO SECTION 200A VIDE WHICH IT HAS BEEN PROVIDED THAT F EES PAYABLE ITA NOS.4284 & 4285/M/2015 4 UNDER SECTION 234E CAN BE ADJUSTED WHILE PROCESSING INTIMATION UNDER SECTION 200A W.E.F. 1.6.2015. 4. NOW COMING TO THE FACTS OF THESE CASES, IN THE C OURSE OF THE PROCESSING OF THE TDS RETURNS, THE ASSESSING OFFICE R (TDS) [HEREINAFTER REFERRED TO AS THE AO(TDS)] RAISED DEM AND IN EACH OF THE ABOVE CASES BY WAY OF AN INTIMATION ISSUED UNDE R SECTION 200A OF THE ACT FOR LEVY OF FEES UNDER SECTION 234E FOR DELAY IN FILING OF TDS STATEMENT BEYOND THE PERIOD STIPULATED AS PER T HE PROVISIONS OF SECTION 200(3) OF THE ACT. AGGRIEVED BY THIS L EVY OF FEES, THE RESPECTIVE ASSESSEES CARRIED THE MATTER IN APPEAL B EFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. BEING AGGRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSESSEES IN THE ABOVE CAPTIONE D 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. RESPECTIVE COUNSELS FOR THE ASSESSEES HAS BEEN THAT THIS ISSUE HAS ALREADY BEEN CONSIDERED BY THE AMRITSAR BENCH OF THE TRIBUN AL IN THE CASE OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT (2015) 171 TTJ (ASR) 0145 WHEREIN THE AMRITSAR BENCH OF THE TRIBUNAL HAS HELD THAT SINCE THE INTIMATION UNDER SECTION 200A IS AN APPEA LABLE ORDER BEFORE THE LD. CIT(A) (W.E.F. 1.7.2012) UNDER SECTI ON 246A(A) AND THEREFORE THE LD. CIT(A) COULD HAVE EXAMINED THE VA LIDITY OF THE ADJUSTMENTS MADE UNDER THE INTIMATION UNDER SECTION 200A IN THE LIGHT AND SCOPE OF THE PROVISIONS OF SECTION 200A. THE TRIBUNAL FURTHER OBSERVED THAT SINCE THERE WAS NO ENABLING P ROVISION UNDER SECTION 200A BEFORE 01.06.15 PROVIDING FOR THE ADJU STMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WHILE PR OCESSING THE TDS STATEMENTS, HENCE IN THE ABSENCE OF SUCH AN ENA BLING PROVISION, NO SUCH LEVY COULD BE AFFECTED. THE PRO VISION FOR MAKING ADJUSTMENTS REGARDING FEES LEVIABLE UNDER SE CTION 234E HAS BEEN INTRODUCED BY WAY OF AMENDMENT MADE VIDE F INANCE 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 FEES LEVIABLE UNDER SECTION 234E WHILE PROCESSING THE TD S STATEMENTS UNDER SECTION 200A FOR THE PERIOD PRIOR TO 1.6.2015 , WAS NOT LEGALLY VALID. IT HAS THEREFORE BEEN CONTENDED ON BEHALF OF THE AS SESSEES THAT THE TDS STATEMENTS FILED BY THE ASSESSEE HAS TO BE PROC ESSED 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 ITA NOS.4284 & 4285/M/2015 5 234E OF THE ACT, THUS, CANNOT BE A SUBJECT MATTER O F PROCESS, 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 RA SHMIKANT KUNDALIA VS. UNION OF INDIA DATED 09.02.15 WHICH D ECISION HAS BEEN RELIED UPON BY THE LD. CIT(A) IN THE IMPUGNED ORDER WHEREIN THE JURISDICTIONAL HONBLE BOMBAY HIGH COURT HAS UP HELD THE CONSTITUTIONAL VALIDITY OF SECTION 234E. THE LD. D. R. HAS FURTHER SUBMITTED THAT, EVEN OTHERWISE, THE SECTION 234E OF THE ACT IS AN INDEPENDENT SECTION AND THE AO (TDS) HAS OTHERWISE JURISDICTION TO LEVY PENALTY FOR DELAY IN FILING TDS STATEMENTS AS PROVIDED UNDER SECTION 200(3) OF THE ACT. IT HAS THEREFORE BEEN C ONTENDED THAT THE AO(TDS) HAS RIGHTLY EXERCISED HIS JURISDICTION WHIL E MAKING ADJUSTMENT OF THE FEES LEVIABLE UNDER SECTION 234E FOR NON COMPLIANCE/DELAY IN FILING THE TDS STATEMENTS AS PR OVIDED 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 T HE RELIANCE OF THE REVENUE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA (S UPRA) IS CONCERNED, WE FIND THAT IN THE SAID CASE THE CONSTI TUTIONAL VALIDITY OF SECTION 234E WAS CHALLENGED. THE HONBLE BOMBAY HIGH COURT HAS UPHELD THE VALIDITY OF THE SECTION 234E. HOWEV ER, THE ISSUE WHETHER THE FEES LEVIABLE UNDER SECTION 234E CAN BE ADJUSTED WHILE PROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT IN RELATION TO THE PERIOD PRIOR TO 01.06.15, HAS NEITH ER BEEN RAISED BEFORE THE HONBLE BOMBAY HIGH COURT NOR HAS BEEN A DJUDICATED. HENCE, THE RELIANCE OF THE REVENUE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDAL IA VS. UNION OF INDIA (SUPRA) SO FAR AS THE ISSUE IS CONC ERNED, IS OF NO HELP TO THE REVENUE. ONE OF THE CONTENTIONS RAISED BEFORE THE HONBLE BOMBAY HIGH COURT WAS THAT UNDER THE PROVIS IONS OF THE ACT, NO APPEAL IS PROVIDED FOR OR FROM AN ARBITRARY ORDER PASSED UNDER SECTION 234E OF THE ACT. THE HONBLE 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 DEEMS 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 AL WAYS APPROACH THE HONBLE HIGH COURT IN EXTRAORDINARY EQUITABLE J URISDICTION ITA NOS.4284 & 4285/M/2015 6 UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA, AS THE CASE MAY BE. 8. HOWEVER, IN THE CASES BEFORE US, THE GRIEVANCE O F THE ASSESSEES IS NOT AGAINST THE LEVY OF FEES UNDER SEC TION 234E OF THE ACT INDEPENDENTLY RATHER, THE ISSUE IS THAT WHILE P ROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT, WHETH ER OR NOT, THE FEES LEVIABLE UNDER SECTION 234E CAN BE ADJUSTED TH EREIN? NO DOUBT, THE ORDER PASSED UNDER SECTION 200A IS AN AP PEALABLE ORDER 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) P ASSED UNDER 250 OF THE ACT IS FURTHER APPEALABLE BEFORE THIS TRIBUN AL UNDER SECTION 253 OF THE ACT. HENCE, WE DO NOT FIND ANY ILLEGALI TY IN THE COURSE ADOPTED BY THE ASSESSEES OF INVOKING THE APPEALABLE JURISDICTION OF THIS TRIBUNAL FOR REDRESSAL OF THEIR GRIEVANCE ON T HIS ISSUE. 9. SO FAR AS THE ISSUE WHETHER FOR THE PERIOD PRIOR TO 01.06.15, SUCH ADJUSTMENT CAN BE MADE WHILE PROCESSING THE ST ATEMENTS UNDER SECTION 200A OF THE ACT IS CONCERNED, WE FIND THAT THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF SIBI A HEALTHCARE PVT. LTD. VS. DCIT (SUPRA) HAS HELD THAT IN THE AB SENCE OF ENABLING PROVISION UNDER SECTION 200A PRIOR TO 01.0 6.15 SUCH A POWER WAS NOT VESTED WITH THE AO (TDS). THE SAID D ECISION HAS BEEN FURTHER FOLLOWED BY THE AHMEDABAD BENCH OF THE TRIBUNAL IN A RECENT DECISION DATED 05.02.16 IN THE CASE OF VARU N RADIATORS PVT. LTD. VS DCIT (CPC- TDS) 2016-TIOL-436-ITAT-AH M. HOWEVER, WE HAVE COME ACROSS ANOTHER DECISION OF TH E CHENNAI BENCH DATED 10.07.15 IN THE CASE OF SMT. G. INDHIR ANI & OTHERS VS. DCIT, CPC-TDS IN ITA NO.109/MAS/2015 & OTHERS WHEREIN THE CHENNAI BENCH OF THE TRIBUNAL HAS CONSIDERED TH E DECISION OF THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT (SUPRA) AND HAS ARRI VED AT A SIMILAR FINDING THAT UNDER SECTION 200A, IN THE ABS ENCE OF ENABLING PROVISION FOR THE PERIOD BEFORE 01.06.15, THE LEVY OF FEE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEMENTS WA S NOT PERMISSIBLE TO THE AO (TDS). HOWEVER, THE CO-ORDIN ATE CHENNAI BENCH OF THE TRIBUNAL HAS ALSO EXAMINED THE OTHER C ONTENTION OF THE REVENUE THAT SECTION 234E IS AN INDEPENDENT SEC TION AND THE FEES CAN BE LEVIED BY THE AO (TDS), INDEPENDENT OF THE PROVISIONS OF SECTION 200A, FOR THE DEFAULT/DELAY IN FILING TH E TDS STATEMENTS AS PRESCRIBED UNDER SECTION 200(3) OF THE ACT. THE TRIBUNAL, CONSIDERING THE ABOVE SUBMISSIONS, HELD THAT IF THE ASSESSEE FAILS TO PAY THE FEES BEFORE FILING THE STATEMENT UNDER SECT ION 200(3) OF THE ITA NOS.4284 & 4285/M/2015 7 ACT, THE ASSESSING AUTHORITY MAY PASS A SEPARATE OR DER LEVYING OF SUCH A FEE UNDER SECTION 234E OF THE ACT, IF THE SA ME IS NOT BARRED BY TIME LIMIT OR OTHERWISE UNDER ANY OTHER PROVISIO NS OF LAW. THE ASSESSING AUTHORITY, HOWEVER, COULD NOT ADJUST THE FEES LEVIABLE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEME NT UNDER SECTION 200A OF THE ACT. HOWEVER, AFTER 01.06.15 T HE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT TO LEVY FEE UNDE R SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE STATEMENT UNDER S ECTION 200A AND MAKING ADJUSTMENT. THE RELEVANT PART OF THE DE CISION OF THE CHENNAI BENCH OF THE TRIBUNAL FOR THE SAKE OF COMPL ETENESS 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 DELIVE R THE STATEMENT WITHIN THE PRESCRIBED TIME, THE ASSESSEE IS LIABLE TO PAY BY WAY OF FEE A SUM OF Z200/- FOR EVERY DAY DURIN G SUCH A PERIOD THE FAILURE CONTINUES. REFERRING TO THE WORD USED IN THE SECTION 234E 'HE SHALL BE LIABLE TO PAY', THE LD. C OUNSEL POINTED OUT THAT THE ASSESSEE IS LIABLE TO PAY FEE. HOWEVER , IT DOES NOT EMPOWER THE ASSESSING OFFICER TO LEVY THE FEE. SECTIO N 234E(3) OF THE ACT PROVIDES FOR PAYMENT OF THE FEE BEFORE DELIV ERY OF STATEMENT UNDER SECTION 200(3) OF THE ACT. THEREFORE, THE FEE HAS TO BE PAID BY THE ASSESSEE VOLUNTARILY BEFORE FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT AND THE ASSESSING AU THORITY HAS NO POWER TO LEVY THE FEE. 5. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT SECTION 234E OF THE A CT PROVIDES FOR PAYMENT OF FEE, IF THE ASSESSEE FAILS TO DELIVER THE STATEMENT AS PRESCRIBED IN SECTION 200(3) OF THE ACT. THEREFORE, THE ASSESSING OFFICER HAS EVERY AUTHORITY TO LEVY FEE EITH ER BY A SEPARATE ORDER OR WHILE PROCESSING THE STATEMENT UNDER SE CTION 200A OF THE ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. SECTION 200A OF THE ACT PROVIDES FOR PROCESSING OF THE STATEMENT OF TAX DEDUC TED AT SOURCE BY MAKING ADJUSTMENT AS PROVIDED IN THAT SECT ION. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE PROVISIO NS 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 ITA NOS.4284 & 4285/M/2015 8 SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUC TOR) UNDER SECTION 200, SUCH STATEMENT SHALL BE PROCESSE D 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 AN INFORMATION 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 UNDER CLAUSE (B) AGAINST ANY AMOUNT PAID UNDER SECTION 200 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 PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, H IM UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PURSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHA LL 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 T HE FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION -FOR THE PURPOSES OF THIS SUB-SECTION, 'ART INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN TH E STATEMENT' SHALL MEAN A CLAIM, ON THE BASIS OF AN E NTRY, IN THE STATEMENT- (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTR Y 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 CENTRA LISED ITA NOS.4284 & 4285/M/2015 9 PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE TO EXPEDITIOUSLY 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 ADJUSTM ENT OTHER THAN THE ONE PRESCRIBED ABOVE IN SECTION 200A OF TH E ACT. BY FINANCE ACT, 2015, WITH EFFECT FROM 01.06.2015, THE PARLIAMENT AMENDED SECTION 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 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 THE AMOUNT COMPUTED UNDER CLAUSE (B) AND CLAUSE (C) 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; (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 UND ER CLAUSE (D); AND (F) THE AMOUNT OF REFUND DUE TO THE DEDUCTOR IN PUR SUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRAN TED 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 WITH REGARD TO TAX DEDUCTED AT SOURCE BY LEVYING FE E UNDER SECTION 234E OF THE ACT. THE PARLIAMENT FOR THE FIR ST 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 ITA NOS.4284 & 4285/M/2015 10 CASE BEFORE US, THE ASSESSING OFFICER LEVIED FEE UN DER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF T AX 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 WHI LE 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 SEC TION 234E OF THE ACT SAYS THAT THE ASSESSEE 'SHALL BE LIABLE TO PAY' BY WAY OF FEE, THEREFORE, THE ASSESSEE HAS TO VOLUNTAR ILY 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 ARGUMENT. WHEN SECTION 234E CLEARLY SAYS THAT THE A SSESSEE IS LIABLE TO PAY FEE FOR THE DELAY IN DELIVERY OF T HE STATEMENT WITH REGARD TO TAX DEDUCTED AT SOURCE, THE ASSESSEE SHALL PAY THE FEE AS PROVIDED UNDER SECTION 234E(1) OF THE AC T BEFORE DELIVERY OF THE STATEMENT UNDER SECTION 200(3) OF T HE ACT. IF THE ASSESSEE FAILS TO PAY THE FEE FOR THE PERIODS OF DE LAY, THEN THE ASSESSING AUTHORITY HAS ALL THE POWERS TO LEVY FEE WHILE PROCESSING 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 IS THAT LEVY OF FEE UNDER S ECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DE DUCTED AT SOURCE AND MAKING ADJUSTMENT BEFORE 01 .06.2015. IT DOES NOT MEAN THAT THE ASSESSING OFFICER CANNOT PASS A SEPAR ATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE FOR THE D ELAY IN FILING THE STATEMENT AS REQUIRED UNDER SECTION 200(3) OF T HE ACT. 9. THE CONTENTION OF THE ASSESSEE CAN ALSO BE EXAM INED IN THE LIGHT OF THE PROVISIONS OF INDIAN PENAL CODE. S ECTION 396 OF INDIAN PENAL CODE PROVIDES FOR PUNISHMENT FOR DACOI TY WITH MURDER. THE PUNISHMENT IS IMPRISONMENT FOR LIFE OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY BE EXTENDED TO TE N YEARS AND ALSO LIABLE TO FINE. FOR THE PURPOSE OF CONVENI ENCE, WE ARE REPRODUCING SECTION 396 OF INDIAN PENAL CODE, HEREU NDER:- '396. D ACOITY WITH MURDER - IF ANY ONE OF FIVE OR MORE PERSONS, WHO ARE CONJOINTLY COMMITTING DACOITY, COMMITS MURDER IN SO COMMITTING DACOITY, EVERY ONE OF THOSE PERSONS SHALL BE PUNISHED WITH DEATH, OR IMPRISONMENT FOR LIFE, OR RIGOROUS IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO TEN YEARS, AND SHALL ALSO BE LIABLE TO FINE.' ITA NOS.4284 & 4285/M/2015 11 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 A CCUSED WHO IS FOUND TO BE GUILTY SHALL ALSO BE LIABLE TO F INE. SIMILARLY, THE OTHER PROVISIONS OF INDIAN PENAL 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 CODE IS 'SHALL ALSO BE LIABLE TO FINE'. THIS MEANS THAT THE MAGISTRATE OR SESSIONS JUDGE, WHO TRIES THE ACCUSED FOR AN OFFENC E PUNISHABLE UNDER THE PROVISIONS OF INDIAN PENAL COD E, IN ADDITION TO PUNISHMENT OF IMPRISONMENT, 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 PUNISHABL E UNDER INDIAN PENCAL CODE, MAY NOT HAVE AUTHORITY TO LEVY FINE. 10. IT IS WELL KNOWN PRINCIPLE THAT THE FINE PRESC RIBED UNDER THE INDIAN PENAL CODE HAS TO BE LEVIED BY THE CONCE RNED MAGISTRATE OR SESSIONS JUDGE WHO IS TRYING THE OFFE NCE PUNISHABLE UNDER THE INDIAN PENAL CODE. THEREFORE, THE CONTENTION OF THE LD.COUNSEL THAT MERELY BECAUSE TH E PARLIAMENT HAS USED THE LANGUAGE HE SHALL BE LIABL E TO PAY BY WAY OF FEE', THE ASSESSEE HAS TO PAY THE FEE VOLUNT ARILY AND THE 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 COMPULSION UNDER THE STATUTORY PROVISION. THE PARLIAMENT WELCOMES THE CITIZENS TO COME FORWARD AND COMPLY WITH THE PROVISIONS OF THE ACT B Y PAYING THE PRESCRIBED FEE BEFORE FILING THE STATEMENT UNDE R SECTION 200(3) OF THE ACT. HOWEVER, IF THE ASSESSEE FAILS T O PAY THE FEE BEFORE FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT, THE ASSESSING AUTHORITY IS WELL WITHIN HIS LIMIT IN PAS SING A SEPARATE ORDER LEVYING SUCH A FEE IN ADDITION TO PR OCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT. IN OTHER W ORDS, BEFORE 01.06.2015, THE ASSESSING AUTHORITY COULD PA SS A SEPARATE ORDER UNDER SECTION 234E LEVYING FEE FOR D ELAY 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 EVE N WHILE PROCESSING THE STATEMENT UNDER SECTION 200A AND MAK ING ADJUSTMENT. 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 WHILE PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200A OF THE ACT. THEREFORE, THE IMPUGNED INTIMATION OF THE LOWER AUTHORITIES LEVYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MADE CLE AR THAT IT IS ITA NOS.4284 & 4285/M/2015 12 OPEN TO THE ASSESSING OFFICER TO PASS A SEPARATE OR DER UNDER SECTION 234E OF THE ACT LEVYING FEE PROVIDED THE LI MITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIM ATION UNDER SECTION 200A AS CONFIRMED BY THE CIT(APPEALS) IN SO FAR AS LEVY OF FEE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED IS DELETED. HOWEVER, THE OTHER ADJUSTMENT MADE 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. 9. IN THE CASE IN HAND ALSO THE INTIMATION U/S. 200 A HAS BEEN PROCESSED PRIOR TO 1.6.2015 WHEREIN FEE U/S. 234E W AS LEVIED. TAKING CONSISTENT VIEW IN THIS MATTER, FOLLOWING TH E SAID DECISION, WE SET ASIDE THE DEMAND RAISED U/S. 234E OF THE ACT IN THE INTIMATION PROCESSED U/S. 200A OF THE ACT PRIOR TO 1.6.2015. 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD SEPTEMBER, 2016. SD/- SD/- (RAJENDRA) (C.N. PRASAD ) ' / ACCOUNTANT MEMBER $ %' /JUDICIAL MEMBER MUMBAI; (' DATED 23 RD SEPTEMBER, 2016 . % . ./ RJ , SR. PS ITA NOS.4284 & 4285/M/2015 13 !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+ ,%%-. , -.! , / DR, ITAT, MUMBAI 6. , /01 / GUARD FILE. / BY ORDER, *% //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI