MAHESH ANAND SONTAKKE, MUMBAI V. DCIT CPC (TDS) GHAZIABAD, UTTAR PRADESH

ITA 4367/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7673 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 16-07-2015
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Keywords: Non compliance; Right to appeal
• Section: 246

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NOS.4366 TO 4368/MUM/2015 ASSESSMENT YEAR: 2014-15 MAHESH ANAND SONTAKKE, CITY SURVEY NO.19, ESATE ABOVE SUZUKI SHOW ROOM, OPP. BMC SCHOOL, LINK ROAD, SAKINAKA, GHATKOPAR, MUMBAI-400072 / VS. DCIT(TDS), CENTRAL PROCESSING CENTRE, AAYAKAR BHAVAN, SECTOR - 3, VAISHALI, GHAZIABAD, U.P.201010 ( ! /ASSESSEE) ( & / REVENUE) P.A. NO. BLTPS7030R ! / ASSESSEE BY SHRI RAJESH S. SHAH & / REVENUE BY SHRI N.P.SINGH CIT-DR ' &( ) ! * / DATE OF HEARING : 30/03/2017 ) ! * / DATE OF ORDER: 30/03/2017 MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 2 / O R D E R PER BENCH THIS BUNCH OF THREE APPEALS IS BY THE ASSESSEE AGA INST THE CONFIRMING OF LEVY OF LATE FILING FEE AMOUNTING TO RS.15,000/- , RS.35,200/- AND RS.11,200/-, RESPECTI VELY U/S 234E OF THE INCOME TAX ACT, 1961 (HEREINAFTER T HE ACT). 2. DURING HEARING, SHRI RAJESH S. SHAH, LD. COUNSE L FOR THE ASSESSEE, CONTENDED THAT THE ISSUE IS COVER ED BY THE DECISION IN THE CASE OF ASSESSEE ITSELF FOR ASSESSM ENT YEAR 2014-15 ITSELF (ITA NO.4365/MUM/2015) ORDER DATED 23/09/2016. THIS FACTUAL MATRIX WAS NOT CONTROVERTE D BY THE LD. CIT-DR, SHRI N.P. SINGH. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION FROM THE AFORESAID ORDER DATED 23/09/2016 IN THE CA SE OF ASSESSEE ITSELF, FOR READY REFERENCE AND ANALYSIS:- THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. CIT(A)-59, MUMBAI DATED 14.05.2015 PERTAINING TO AS SESSMENT YEAR 2014-15. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL: MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 3 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN CONFIRMING LATE FILING LEVY OF RS. 15,000/- WITHOUT PROVIDING PROPER OPPORTUNITY TO THE APPELLANT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING LEVYING LATE FILING LEVY OF RS. 15,000/- FOR DELAY IN FILING OF QUARTERLY STATEMENTS (26Q). 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING LEVYING THE LATE FILING LEVY. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF NOTICE ISSUED TO THE ASSESSEE. THEREFORE, WE HEARD THE LD. DEPART MENTAL REPRESENTATIVE AND DISPOSED OFF THIS MATTER EX PART E ON MERIT. 4. BRIEF FACTS ARE THAT THE ASSESSING OFFICER WHILE PASSING INTIMATION U/S.200A OF THE I.T. ACT CHARGED LATE FI LING FEE IN RESPECT OF QUARTERLY STATEMENT 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 O F THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKANT KUNDALI A VS UNION OF INDIA DATED 9.2.2015. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND WE FIND THAT A SIMILAR ISSUE HAS ARISEN IN A BUNCH OF APPEALS NAMELY M/S. KASH REALTORS PVT. LTD & OTHERS IN ITA NO. 419 9/M/2015 DATED 27.7.2016 WHEREIN THE CO-ORDINATE BENCH CONSI DERING VARIOUS DECISIONS INCLUDING THE JURISDICTIONAL DECI SION WHICH THE MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 4 CIT(APPEALS) RELIED ON I.E. RASHMIKANT KUNDALIA VS UNION OF INDIA DATED 9.2.2015 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 (HEREINAFT ER REFERRED TO AS THE ACT) IN RESPECT OF DEFAULTS IN F URNISHING TDS STATEMENTS, COULD BE LEVIED IN INTIMATION UNDER SECTION 200A OF THE ACT. 2. IN SOME OF THE APPEALS THERE IS A REPRESENTATIO N 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 T HE SHORT AND COMMON ISSUE INVOLVED IN ALL THE APPEALS WHICH CAN BE ADJUDICATED ON THE BASIS OF ONLY A FEW MATER IAL FACTS, WE PROCEED TO DECIDE THE APPEALS REJECTING THE ADJO URNMENT APPLICATIONS, IF ANY, MOVED IN ANY OF THE ABOVE CAP TIONED APPEALS. 3. IN ALL THESE CASES, THERE WAS ADMITTEDLY A DELAY IN FILING OF THE TDS RETURNS. THE PERIOD INVOLVED IS AFTER 01.07 .12, BUT PRIOR TO 01.06.15. THESE DATES ARE RELEVANT BECAUSE 1.7.2012 IS THE DATE OF INSERTION OF SECTION 234E INTO THE I NCOME TAX ACT, 1961 WHEREAS 1.6.2015 IS THE DATE OF AMENDMENT/SUBSTITUTION OF CLAUSE (C) TO SECTION 200 A VIDE WHICH IT HAS BEEN PROVIDED THAT FEES PAYABLE UNDER SECTION 234E CAN BE ADJUSTED WHILE PROCESSING INTIMATION UN DER 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 ISS UED UNDER SECTION 200A OF THE ACT FOR LEVY OF FEES UNDER SECT ION 234E FOR DELAY IN FILING OF TDS STATEMENT BEYOND THE PER IOD STIPULATED AS PER THE PROVISIONS OF SECTION 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. MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 5 CIT(A), THE ASSESSEES IN THE ABOVE CAPTIONED APPEAL S 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. R ESPECTIVE COUNSELS FOR THE ASSESSEES HAS BEEN THAT THIS ISSUE HAS ALREADY BEEN CONSIDERED BY THE AMRITSAR BENCH OF TH E TRIBUNAL IN THE CASE OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT (2015) 171 TTJ (ASR) 0145 WHEREIN THE AMRITSAR BENC H OF THE TRIBUNAL HAS HELD THAT SINCE THE INTIMATION UND ER SECTION 200A IS AN APPEALABLE ORDER BEFORE THE LD. CIT(A) ( W.E.F. 1.7.2012) UNDER SECTION 246A(A) AND THEREFORE THE L D. CIT(A) COULD HAVE EXAMINED THE VALIDITY OF THE ADJUSTMENTS MADE UNDER THE INTIMATION UNDER SECTION 200A IN THE LIGH T AND SCOPE OF THE PROVISIONS OF SECTION 200A. THE TRIBUN AL FURTHER OBSERVED THAT SINCE THERE WAS NO ENABLING PROVISION 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 ENABLING PROVISION, NO SUCH LEVY COULD BE AFFECTED. THE PROV ISION FOR MAKING ADJUSTMENTS REGARDING FEES LEVIABLE UNDER SE CTION 234E HAS BEEN INTRODUCED BY WAY OF AMENDMENT MADE V IDE FINANCE ACT, 2015 W.E.F. 01.06.15 ONLY. THE TRIBUNA L THEREFORE HELD THAT THE ACTION OF THE AO IN MAKING ADJUSTMENTS WITH REGARD TO THE FEES LEVIABLE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEMENTS UNDER SECT ION 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 T O BE PROCESSED IN THE MANNER AS LAID DOWN IN THE PROVISI ONS OF SECTION 200A AS IN FORCE DURING THE RELEVANT PERIOD . THAT THE LEVY OF FEES UNDER SECTION 234E OF THE ACT, THUS, C ANNOT BE A SUBJECT MATTER OF PROCESS, WHILE PROCESSING THE STA TEMENT 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 CA SE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA DATED 09.0 2.15 WHICH DECISION HAS BEEN RELIED UPON BY THE LD. CIT( A) IN THE IMPUGNED ORDER WHEREIN THE JURISDICTIONAL HONBLE B OMBAY MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 6 HIGH COURT HAS UPHELD THE CONSTITUTIONAL VALIDITY O F SECTION 234E. THE LD. D.R. HAS FURTHER SUBMITTED THAT, EVEN OTHERWISE, THE SECTION 234E OF THE ACT IS AN INDEPE NDENT SECTION AND THE AO (TDS) HAS OTHERWISE JURISDICTION TO LEVY PENALTY FOR DELAY IN FILING TDS STATEMENTS AS PROVI DED UNDER SECTION 200(3) OF THE ACT. IT HAS THEREFORE BEEN CO NTENDED THAT THE AO(TDS) HAS RIGHTLY EXERCISED HIS JURISDICTION WHILE MAKING ADJUSTMENT OF THE FEES LEVIABLE UNDER SECTIO N 234E FOR NON COMPLIANCE/DELAY IN FILING THE TDS STATEMENTS A S 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 TH E RELIANCE OF THE REVENUE ON THE DECISION OF THE HONBLE BOMBA Y HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS. UNION OF INDIA (SUPRA) IS CONCERNED, WE FIND THAT IN THE SA ID CASE THE CONSTITUTIONAL VALIDITY OF SECTION 234E WAS CHALLEN GED. THE HONBLE BOMBAY HIGH COURT HAS UPHELD THE VALIDITY O F THE SECTION 234E. HOWEVER, THE ISSUE WHETHER THE FEES L EVIABLE UNDER SECTION 234E CAN BE ADJUSTED WHILE PROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT IN RELATIO N TO THE PERIOD PRIOR TO 01.06.15, HAS NEITHER BEEN RAISED B EFORE THE HONBLE BOMBAY HIGH COURT NOR HAS BEEN ADJUDICATED. HENCE, THE RELIANCE OF THE REVENUE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RASHMIKAN T 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 C OURT WAS THAT UNDER THE PROVISIONS OF THE ACT, NO APPEAL IS PROVIDED FOR OR FROM AN ARBITRARY ORDER PASSED UNDE R SECTION 234E OF THE ACT. THE HONBLE BOMBAY HIGH COURT OBSE RVED 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 HIGH COURT HAS OBSERVED THAT EVEN IN SUCH A SCENARIO, THE AGGR IEVED PARTY IS NOT LEFT REMEDILESS RATHER SUCH AGGRIEVED PERSON CAN ALWAYS APPROACH THE HONBLE HIGH COURT IN EXTRAORDI NARY EQUITABLE JURISDICTION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA, AS THE CASE MAY BE. 8. HOWEVER, IN THE CASES BEFORE US, THE GRIEVANCE OF THE ASSESSEES IS NOT AGAINST THE LEVY OF FEES UNDER SEC TION 234E OF MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 7 THE ACT INDEPENDENTLY RATHER, THE ISSUE IS THAT WHI LE PROCESSING THE TDS STATEMENTS UNDER SECTION 200A OF THE ACT, WHETHER OR NOT, THE FEES LEVIABLE UNDER SECTION 234 E CAN BE ADJUSTED THEREIN? NO DOUBT, THE ORDER PASSED UNDER SECTION 200A IS AN APPEALABLE ORDER BEFORE THE LD. CIT(A) U NDER SECTION 246 OF THE ACT (W.E.F. 1.7.2012). THE APPEL LATE ORDER OF THE LD. CIT(A) PASSED UNDER 250 OF THE ACT IS FU RTHER APPEALABLE BEFORE THIS TRIBUNAL UNDER SECTION 253 O F THE ACT. HENCE, WE DO NOT FIND ANY ILLEGALITY IN THE COURSE ADOPTED BY THE ASSESSEES OF INVOKING THE APPEALABLE JURISDICTI ON OF THIS TRIBUNAL FOR REDRESSAL OF THEIR GRIEVANCE ON THIS I SSUE. 9. SO FAR AS THE ISSUE WHETHER FOR THE PERIOD PRIO R TO 01.06.15, SUCH ADJUSTMENT CAN BE MADE WHILE PROCESS ING THE STATEMENTS UNDER SECTION 200A OF THE ACT IS CONCERN ED, WE FIND THAT THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT (SUPRA) HAS H ELD THAT IN THE ABSENCE OF ENABLING PROVISION UNDER SECTION 200A PRIOR TO 01.06.15 SUCH A POWER WAS NOT VESTED WITH THE AO (TDS). THE SAID DECISION HAS BEEN FURTHER FOLLOWED 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 BE NCH DATED 10.07.15 IN THE CASE OF SMT. G. INDHIRANI & OTHERS VS. DCIT, CPC-TDS IN ITA NO.109/MAS/2015 & OTHERS WHEREIN THE CHENNAI BENCH OF THE TRIBUNAL HAS CONSI DERED THE DECISION OF THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF SIBIA HEALTHCARE PVT. LTD. VS. DCIT (SUPRA) AN D HAS ARRIVED AT A SIMILAR FINDING THAT UNDER SECTION 200 A, IN THE ABSENCE OF ENABLING PROVISION FOR THE PERIOD BEFORE 01.06.15, THE LEVY OF FEE UNDER SECTION 234E WHILE PROCESSING THE TDS STATEMENTS WAS NOT PERMISSIBLE TO THE AO (TDS). HOW EVER, THE CO-ORDINATE CHENNAI BENCH OF THE TRIBUNAL HAS A LSO EXAMINED THE OTHER CONTENTION OF THE REVENUE THAT S ECTION 234E IS AN INDEPENDENT SECTION AND THE FEES CAN BE LEVIED BY THE AO (TDS), INDEPENDENT OF THE PROVISIONS OF SECT ION 200A, FOR THE DEFAULT/DELAY IN FILING THE TDS STATEMENTS AS PRESCRIBED UNDER SECTION 200(3) OF THE ACT. THE TRI BUNAL, CONSIDERING THE ABOVE SUBMISSIONS, HELD THAT IF THE ASSESSEE FAILS TO PAY THE FEES BEFORE FILING THE STATEMENT U NDER SECTION 200(3) OF THE ACT, THE ASSESSING AUTHORITY MAY PASS A MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 8 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 ASSESSING AU THORITY, HOWEVER, COULD NOT ADJUST THE FEES LEVIABLE UNDER S ECTION 234E WHILE PROCESSING THE TDS STATEMENT UNDER SECTI ON 200A OF THE ACT. HOWEVER, AFTER 01.06.15 THE ASSESSING A UTHORITY IS WELL WITHIN HIS LIMIT TO LEVY FEE UNDER SECTION 234 E OF THE ACT EVEN WHILE PROCESSING THE STATEMENT UNDER SECTION 2 00A AND MAKING ADJUSTMENT. THE RELEVANT PART OF THE DECISIO N 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 SECTIO N 234A OF THE ACT AND SUBMITTED THAT WHEN AN ASSESSEE FAILS T O DELIVER THE STATEMENT WITHIN THE PRESCRIBED TIME, THE ASSES SEE IS LIABLE TO PAY BY WAY OF FEE A SUM OF Z200/- FOR EVE RY DAY DURING SUCH A PERIOD THE FAILURE CONTINUES. REFERRI NG TO THE WORD USED IN THE SECTION 234E 'HE SHALL BE LIABLE T O PAY', THE LD. COUNSEL POINTED OUT THAT THE ASSESSEE IS LIABLE TO PAY FEE. HOWEVER, IT DOES NOT EMPOWER THE ASSESSING OFFICER TO LEVY THE FEE. SECTION 234E(3) OF THE ACT PROVIDES FOR PA YMENT OF THE FEE BEFORE DELIVERY OF STATEMENT UNDER SECTION 200(3) OF THE ACT. THEREFORE, THE FEE HAS TO BE PAID BY THE A SSESSEE VOLUNTARILY BEFORE FILING THE STATEMENT UNDER SECTI ON 200(3) OF THE ACT AND THE ASSESSING AUTHORITY HAS NO POWER TO LEVY THE FEE. 5. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT SECTION 234E OF THE ACT PROVIDES FOR PAYMENT OF FEE, IF THE ASSESSE E FAILS TO DELIVER THE STATEMENT AS PRESCRIBED IN SECTION 200( 3) OF THE ACT. THEREFORE, THE ASSESSING OFFICER HAS EVERY AUT HORITY TO LEVY FEE EITHER BY A SEPARATE ORDER OR WHILE PROCES SING THE STATEMENT UNDER SECTION 200A OF THE ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. SECTIO N 200A OF THE ACT PROVIDES FOR PROCESSING OF THE STATEMENT OF TAX DEDUCTED AT SOURCE BY MAKING ADJUSTMENT AS PROVIDED IN THAT SECTION. FOR THE PURPOSE OF CONVENIENCE, WE ARE REP RODUCING THE PROVISIONS OF SECTION 200A OF THE ACT:- MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 9 '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 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, NA MELY : (I) ANY ARITHMETICAL ERROR IN THE STATEMENT ; OR (II) AN INCORRECT CLAIM, APPARENT FROM AN 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 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 PA YABLE 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 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- MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 10 (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 SUBSECTION (1), THE BOARD MAY MAKE A SCHEME FOR CEN TRALISED 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-SEC TION. 7. THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTMENT 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 1ST 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 UNDER SECTION 200 OR SECTION 201 OR SECTION 23 4E 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 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 PU RSUANCE OF THE DETERMINATION UNDER CLAUSE (D) SHALL BE GRANTED TO THE DEDUCTOR.' MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 11 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 FEE UND ER SECTION 234E 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 ASS ESSEES, WHILE PROCESSING STATEMENT UNDER SECTION 200A OF THE ACT, THE ASSESSING OFFICER CANNOT MAKE ANY ADJUSTMENT BY LEV YING 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 S OURCE UNDER SECTION 200A OF THE ACT. THEREFORE, THIS TRIBUNAL I S OF THE CONSIDERED OPINION THAT THE FEE LEVIED BY THE ASSES SING OFFICER UNDER SECTION 234E OF THE ACT WHILE PROCESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE IS BEYOND THE SCOPE OF ADJUS TMENT 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 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 REG ARD 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 SECTION 200(3) OF THE ACT. IF THE A SSESSEE FAILS TO PAY THE FEE FOR THE PERIODS OF DELAY, THEN THE ASSE SSING 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 ASSESS ING OFFICER HAD EVERY AUTHORITY TO PASS AN ORDER SEPARATELY LEV YING FEE UNDER SECTION 234E OF THE ACT. WHAT IS NOT PERMISSI BLE IS THAT LEVY OF FEE UNDER SECTION 234E OF THE ACT WHILE PRO CESSING THE STATEMENT OF TAX DEDUCTED AT SOURCE AND MAKING ADJU STMENT BEFORE 01 .06.2015. IT DOES NOT MEAN THAT THE ASSES SING OFFICER CANNOT PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 12 LEVYING FEE FOR THE DELAY IN FILING THE STATEMENT A S REQUIRED UNDER SECTION 200(3) OF THE ACT. 9. THE CONTENTION OF THE ASSESSEE CAN ALSO BE EXAM INED IN THE LIGHT OF THE PROVISIONS OF INDIAN PENAL CODE. SECTI ON 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. DACOITY WITH MURDER - IF ANY ONE OF FIVE OR M ORE PERSONS, WHO ARE CONJOINTLY COMMITTING DACOITY, COMMITS MURD ER IN SO COMMITTING DACOITY, EVERY ONE OF THOSE PERSONS SHAL L BE PUNISHED WITH DEATH, OR IMPRISONMENT FOR LIFE, OR R IGOROUS IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO TEN YEA RS, 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 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 OFF ENCE 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 PUNISHABLE UN DER 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 PUNISHA BLE UNDER THE INDIAN PENAL CODE. THEREFORE, THE CONTENTION OF THE LD.COUNSEL THAT MERELY BECAUSE THE PARLIAMENT HAS U SED THE LANGUAGE HE SHALL BE LIABLE TO PAY BY WAY OF FEE', THE ASSESSEE HAS TO PAY THE FEE VOLUNTARILY AND THE ASSESSING OF FICER HAS NO AUTHORITY TO LEVY FEE COULD NOT BE ACCEPTED. NO ONE WOULD COME MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 13 FORWARD TO PAY THE FEE VOLUNTARILY UNLESS THERE IS A COMPULSION UNDER THE STATUTORY PROVISION. THE PARLIAMENT WELCO MES THE CITIZENS TO COME FORWARD AND COMPLY WITH THE PROVIS IONS OF THE ACT BY PAYING THE PRESCRIBED FEE BEFORE FILING THE STATEMENT UNDER SECTION 200(3) OF THE ACT. HOWEVER, IF THE AS SESSEE FAILS TO PAY THE FEE BEFORE FILING THE STATEMENT UNDER SECTI ON 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 PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT. IN OTHER W ORDS, BEFORE 01.06.2015, THE ASSESSING AUTHORITY COULD PASS A SE PARATE ORDER UNDER 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 LEV Y FEE UNDER SECTION 234E OF THE ACT EVEN WHILE PROCESSING THE S TATEMENT UNDER SECTION 200A AND MAKING 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 WHIL E PROCESSING THE STATEMENT AND MAKE ADJUSTMENT UNDER SECTION 200 A OF THE ACT. THEREFORE, THE IMPUGNED INTIMATION OF THE LOWE R AUTHORITIES LEVYING FEE UNDER SECTION 234E OF THE ACT CANNOT BE SUSTAINED IN LAW. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO T HE ASSESSING OFFICER TO PASS A SEPARATE ORDER UNDER SECTION 234E OF THE ACT LEVYING FEE PROVIDED THE LIMITATION FOR SUCH A LEVY HAS NOT EXPIRED. ACCORDINGLY, THE INTIMATION UNDER SECTION 200A AS CONFIRMED BY THE CIT(APPEALS) IN SOFAR AS LEVY OF F EE UNDER SECTION 234E IS SET ASIDE AND FEE LEVIED IS DELETED . HOWEVER, THE OTHER ADJUSTMENT MADE BY THE ASSESSING OFFICER IN T HE IMPUGNED INTIMATION SHALL STAND AS SUCH. 12. IN THE RESULT, ALL THE APPEALS FILED BY THE AS SESSEES ARE ALLOWED AS INDICATED ABOVE. 7. 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. MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 14 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. WE FIND THAT IN THE AFORESAID ORDER, THE TRIBUNAL H AS CONSIDERED THE DECISION IN THE CASE OF M/S KASH REA LTORS PVT. LTD. & ORS. (ITA NO.4199/MU,/2015) DATED 27/07 /2016 OF THE COORDINATE BENCH AND ALSO A DECISION FROM HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF RASHMIKANT KUNDALIA VS UOI DATED 09/02/2015. FOLLOWING THE AFO RESAID ORDER, WE SET-ASIDE THE DEMAND RAISED U/S 234E OF T HE ACT IN THE INTIMATION PROCESSED U/S 200A OF THE ACT PRI OR TO 01/06/2015. SIMILAR VIEW HAS BEEN TAKEN BY THE HON' BLE KARNATAKA HIGH COURT IN THE CASE OF FATHERAJ SINGHVI V. UNION OF INDIA [2016] 73 TAXMANN.COM 252 (KARNATAKA ). FINALLY, ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 30/03/2017. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ' ( MUMBAI; + DATED : 30/03/2017 F{X~{T? P.S / ,& %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./0 / THE APPELLANT 2. 12/0 / THE RESPONDENT. 3. 3 3 ' 4! ( -. ) / THE CIT, MUMBAI. MAHESH ANAND SONTAKKE ITA NO.4366 TO 4368/MUM/2014 15 4. 3 3 ' 4! / CIT(A)- , MUMBAI 5. 5&6 1! , 3 -.* - 7 , ' ( / DR, ITAT, MUMBAI 6. 8 9( / GUARD FILE. / BY ORDER, 25.! 1! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI,