M/s. NISHITCHEM PRODUCTS PVT. LTD., Indore V. The DCIT (CPC)-TDS GHAZIABAD UNDER JURISDICTION OF ITO TDS-II, Indore

ITA 550/IND/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0462 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-06-2015
• Assessment Year: misc
• Appeal Filed On: 21-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Right to appeal
• Section: 28; 10; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 550/IND/2014 A.Y. 2014-15 NISHITCHEM PRODUCTS PVT. LTD. INDORE PAN TAN BPLNO 1055F ::: APPELLANT VS DY. COMMR. OF INCOME TAX OFFICER (CPC)-TDS, GHAZIABAD UNDER JURISDICTION OF ITO TDS-II, INDORE ::: RESPONDENT ` APPELLANT BY SHRI RAJESH MEHTA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 9.6.2015 DATE OF PRONOUNCEMENT 1 1 . 6 .2015 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LEARNED CIT(A)-II, INDORE, DATED 13.6.2 014. BRIEF FACTS OF THE CASE ARE THAT FEE FOR DEFAULT IN FUR NISHING 2 STATEMENTS U/S 234E OF THE ACT HAS BEEN LEVIED ON THE ASSESSEE OF RS. 23,800/- + RS. 6387/-. THIS LATE FIL ING FEE HAS BEEN WORKED OUT IN THE INTIMATION U/S 200A OF THE ACT DATED 15.11.2013 GENERATED BY TDS. IT HAS BEEN ALSO MENTIONED IN THIS INTIMATION THAT FEE HAS BEEN CALCULATE D @ RS. 200/- PER DAY FROM THE DUE DATE OF FILING TDS STATEMENT TILL THE DATE OF FILING TDS STATEMENT. THE L EARNED CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY HOL DING AS UNDER :- 3.1 THE APPELLANT, VIDE PARA 2 OF THE SUBMISSIONS, HAS STRONGLY CONTENDED THAT PROCESSING U/S 200A OF THE IT ACT, 1961 DOES NOT COVER THE PROCESSING OF THE QUARTERLY TDS STATEMENTS FOR THE PURPOSE OF CHARGING FEE U/S 234E OF THE IT ACT, 1961. THE LEVY OF FEE HAS BEEN FOUND AS AUTOMATIC PROCESS WHICH GOES WITH THE DEFAULT IN FILING THE QUARTERLY TDS 3 STATEMENTS AND THE NUMBER OF DAYS FOR WHICH THE DEFAULT CONTINUES. THE SECTION 200A OF THE I.T. ACT, 1961 EMPOWERS THE A.O. TO RECTIFY ANY MISTAKE OR CLAIM WHICH IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. IN OTHER WORDS, IF THE FEE HAS BEEN PRESCRIBED FOR LATE FILING OF QUARTERLY TDS STATEMENTS AND IN THE EVENT, THE SAID AMOUNT OF FEE HAS NOT BEEN INCORPORATED IN THE AMOUNT OF TAX SO DEDUCTED AND DEPOSITED WHILE FILING THE RELEVANT STATEMENTS, THE A.O. IS VERY WELL WITHIN HIS POWER TO RECTIFY THE SAME IN ACCORDANCE WITH THE EXPRESS PROVISIONS OF LAW. THEREFORE, THE CONTENTION OF THE APPELLANT HAS NOT BEEN FOUND ACCEPTABLE. 3.2 THE APPELLANT VIDE PARA 3 OF THE SUBMISSIONS HAS CONTENDED THAT IN THE INSTANT CASE, THE PERSON RESPONSIBLE FOR PAYING THE 4 AMOUNT OF FEE IS NOT SPECIFIED BECAUSE THE SAME HAS NOT BEEN BROUGHT UNDER SECTION 204 OF THE I.T. ACT, 1961 WHICH DEFINES THE RESPONSIBLE PERSON. IN MY OPINION, THE CONTENTION RAISED BY THE APPELLANT HAS NOT BEEN FOUND WELL PLACED. THE FEE U/S 234E OF THE I.T. ACT, 1961 HAS BEEN PRESCRIBED FOR VIOLATION OF TERMS OF SECTION 200(3) OF THE I.T. ACT, 1961. THE RESPONSIBLE PERSON FOR DEDUCTING THE TAX AND FILING THE QUARTERLY TDS STATEMENTS U/S 200(3) OF THE I.T. ACT, 1961 IS VERY WELL FOUND BROUGHT UNDER THE DEFINITION OF RESPONSIBLE PERSON AS DEFINED IN THE SECTION 204 OF THE I.T. ACT, 1961. 3.3 THE APPELLANT VIDE PARA 4 OF THE SUBMISSIONS, HAS CONTENDED THAT THE QUARTERLY STATEMENT OF TDS CAN BE FILED ONLY AFTER THE 5 TAXES ARE DEDUCTED AND DEPOSITED WITH THE GOVERNMENT. IN OTHER WORDS, THE APPELLANT HAS TRIED TO STATE THAT THE PERIOD OF DEFAULT SHALL BE COUNTED FROM THE DATE OF DEDUCTING AND DEPOSITING OF THE TAX TILL THE FILING OF THE STATEMENT WHICH MEANS THE PRESCRIBED DATES FOR FILING THE STATEMENTS AS PER RULE 31A OF THE I.T. RULES, 1962 R.W. SECTION 200(3) OF THE I.T. ACT, 1961 SHALL HAVE NO MEANING. THE ARGUMENT OF THE APPELLANT IS TOTALLY MISPLACED. THE RELEVANT PROVISIONS OF THE ACT ARE VERY CLEAR WHICH STATE AS UNDER :- ANY PERSON DEDUCTING ANY SUM ON OR AFTER THE IST DAY OF APRIL, 2005 IN ACCORDANCE WITH THE PROVISIONS REFERRED TO IN SUB-SECTION (1A) OF SECTION 192 SHALL, AFTER PAYING THE TAX DEDUCTED TO THE CREDIT 6 OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME, (PREPARE SUCH STATEMENTS FOR SUCH PERIOD AS MAY BE PRESCRIBED). 3.4 IT IS CLEAR FROM THE PLAIN READING OF THE PROVISIONS OF SUB-SECTION 3 OF SECTION 200 OF THE I.T. ACT, 1961 AS ABOVE. IT STATES THAT THE STATEMENT CAN BE PREPARED FOR SPECIFIED PERIOD AND IN SPECIFIED FORM AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF CENTRAL GOVERNMENT WITHIN THE TIME PRESCRIBED. THE TIME FOR FILING THE SAME HAS BEEN PRESCRIBED UNDER RULE 31A(2) OF THE IT RULES, 1962. THE PENAL FEE IS LEVIABLE FOR NOT FILING OR DELIVERING THE SAID STATEMENT WITHIN THE TIME PRESCRIBED IN THE ABOVE RULES WHICH IN THE CASE OF APPELLANT WAS 15 TH OF JULY, 2013 FOR IST QUARTER, 15 TH OCF. FOR IIND QUARTER, 15 TH JAN. FOR IIIRD QUARTER AND 15 TH 7 OF MAY FOR IVTH QUARTER. THE DUE DATES FOR FILING THE STATEMENTS HAVE NOT BEEN DISPUTED BY THE APPELLANT. THE ONLY ISSUE IS WHETHER THE FEE IS LEVIABLE FROM THE DUE DATE TO THE DATE OF FILING OR FROM THE DATE OF DEPOSITING THE TAXES SO COLLECTED TO THE DATE OF FILING OF THE STATEMENT. IN MY CONSIDERED OPINION, THE CONTENTION OF THE APPELLANT IS MISCONSTRUED AND UNACCEPTABLE. THE FEE HAS TO BE LEVIED FROM THE DUE DATE OF FILING THE QUARTERLY TDS STATEMENT. IF WE GO BY THE ARGUMENT OF THE APPELLANT, THEN THE RESPONSIBLE PERSONS MAY NOT DEPOSIT THE COLLECTED AMOUNTS FOR YEARS TOGETHER AND GET AWAY WITH THE PENAL PROVISION OF CHARGING FEE AS PRESCRIBED U/S 234E OF THE I.T. ACT, 1961. 3.5 THE INTENTION OF THE LEGISLATURE IS TWOFOLD, ONE TO GET THE COMPLIANCE FOR DEDUCTING AND 8 DEPOSITING THE TAXES IN TERMS OF SECTION 200(3) OF THE IT ACT, 1961 AND SECONDLY TO GET THE STATEMENT OF SAME FILED WITHIN THE PRESCRIBED TIME FRAME SO AS TO MAKE USEFUL ANALYSIS OF THE STATEMENT. FURTHER, THE ARGUMENT OF THE APPELLANT THAT FOR THE PERIOD FROM THE DUE DATE OF DEDUCTION/DEPOSIT TO THE DATE OF FILING OF THE STATEMENTS, THE APPELLANT HAS ALREADY PAID PENAL INTEREST U/S 200(1A) OF THE IT ACT, 1961 HAS NOT BEEN FOUND ACCEPTABLE BECAUSE PENAL INTEREST IS COMPENSATORY IN NATURE. IT IS LEVIED TO COMPENSATE THE LOSXS OF REVENUE IN THE FORM OF INTEREST ON IMPUGNED TAXES WHICH ARE NOT DEDUCTED AND DEPOSITED WHEREASTHE LEVY OF FEE U/S 234E OF THE IT ACT HAS BEEN BROUGHT IN AS A DETERRENT AGAINST NON-COMPLIANCES OF STATUTORY PROVISIONS OF THE IT ACT, 1961. THE 9 NATURE AND ROLE OF BOTH THE LEVIES ARE ALTOGETHER DIFFERENT. THEREFORE, THE FEE AS PRESCRIBED U/S 234E HAS TO BE CHARGED AUTOMATICALLY FOR THE DEFAULT IN FILING THE QUARTERLY TDS STATEMENT WITHIN THE PRESCRIBED DUE DATES AS SPECIFIED UNDER RULE 31A(2) OF IT RULES, 1962. THE SCHEME OF THE INTERPRETATIONS. IN NORMAL CIRCUMSTANCES, THE QUESTION OF INTERPRETATION OF PROVISIONS AND THE WORDS ARISE IF THERE IS AMBIGUITY IN THE LANGUAGE., IN THE INSTANT CASE, THE PROVISION IS VERY CLEAR WHICH SPECIFICALLY SAYS THAT THE QUARTERLY TDS STATEMENTS HAD TO BE FILED WITHIN THE TIME PRESCRIBED UNDER RULE 31A(2) OF THE IT RULES R.W. SECTION 200(3) OF THE IT ACT, 1961. FURTHER, THE RELEVANT SECTION 234E OF THE IT ACT CLEARLY STATES THAT THE PENAL FEE SHALL BE CHARGED FOR VIOLATION OF SECTION 10 200(3) R.W. RULE 31A(2) AS SUCH I DO NOT FIND ANY REQUIREMENT OF FURTHER INTERPRETATION AS BROUGHT OUT BY THE APPELLANT. 3.6 HON'BLE SUPREME COURT, IN THE CASE OF PANDIAN CHEMICALS VS. CIT; 262 ITR 278 HAS CLEARLY LAID DOWN THAT THE RULES OF INTERPRETATION WILL COME INTO PLAY ONLY IF THERE IS ANY DOUBT WITH REGARD TO THE EXPRESS LANGUAGE USED IN THE PROVISION. WHERE THE WORDS ARE UNEQUIVOCAL, THERE IS NO SCOPE FOR IMPORTING THE RULE OF LIBERAL INTERPRETATION OF AN INCENTIVE PROVISION. SIMILARLY, HON'BLE APEXCOURT IN THE CASE OF CIT VS. BUDDA RAJA & COMPANY 204 ITR 412 HAS HELD THAT LIBERAL INTERPRETATION OF PROVISION SHOULD NOT DO VIOLENCE TO PLAIN LANGUAGE. THE OBJECT OF ENACTMENT SHOULD BE GATHERED FROM A 11 REASONABLE INTERPRETATION OF LANGUAGE USED THEREIN. THE SIMILAR VIEW HAS BEEN TAKEN BY HON'BLE APEX COURT IN THE CASE OF IPCA LABORATORIES VS. DCIT 266 ITR 321 WHEREIN IT HAS BEEN CLEARLY BROUGHT OUT THAT IF THE WORDINGS OF THE PROVISION ARE CLEARLY THEN THE BENEFITS WHICH ARE NOT AVAILABLE UNDER THE PROVISION CANNOT BE CONFERRED BY IGNORING OR MISINTERPRETING THE WORDS IN THE PROVISION. 3.7 IN VIEW OF THE ABOVE DISCUSSION, I AM VERY CLEAR IN MY MIND THAT THE WORDING OF THE ACT IS VERY CLEAR WHICH REQUIRES NO INTERPRETATION IN THE FAVOUR OF ASSESSE. ACCORDINGLY, THE A.O. WAS FOUND JUSTIFY IN CHARGING THE FEE U/S 234E OF THE IT ACT, 1961 WHILE PROCESSING THE RETURN U/S200A OF THE IOT ACT, 1961. 12 3.8 THE CONTENTION OF THE APPELLANT RAISED AT PARA 5 OF SUBMISSIONS, CHALLENGING THE CONSTITUTIONAL VALIDITY OF THE SECTION HAS NOT BEEN FOUND MAINTAINABLE AT MY LEVEL AS SUCH NOT ADJUDICATED. 3.9 THE APPELLANT VIDE PARA 6 OF THE SUBMISSIONS HAS STATED THAT THE IMPUGNED SECTION 234E OF THE IT ACT, 19612 DOES NOT RENDER THE APPELLANT AS ASSESSEE IN DEFAULT IN CAE OF NON-COMPLIANCE. IT IS A MATTER OF FACT AS BROUGHT OUT IN DETAIL ABOVE, THE LEVY OF FEE U/S 234E OF THE IT ACT, 1961 IS AN AUTOMATIC, COMPULSORY AND MANDATORY PROCESS WHICH DOES NOT REQUIRE ASSESSEE TO BE TREATED IN DEFAULT FIRST. THE DEFAULT WILL ARISE ONLY IF THE TAXES HAVE NOT BEEN DEDUCTED. THIS PROVISION IS 13 BASICALLY A FACILITATOR TO COMPLY WITH THE TERMS OF SECTION 200(3) OF I.T. ACT, 1961. 3.10 SIMILARLY, VIDE PARA 7 OF THE WRITTEN SUBMISSIONS, THE APPELLANT HAS CONTENDED THAT THE RESPONSIBLE PERSON IS AN HONORARY AGENT OF THE DEPARTMENT AND HE CANNOT BE PENALIZED FOR DELAY IN THE FILING QUARTERLY TDS STATEMENT. MOREOVER IT HAS BEEN STATED THAT THE LEVY IF EXPONDENTIALLY HARSH, BURDENSOME, DECEITFUL, ATROCIOUS AND OBNOXIOUS. THJE WORDS AND PHRASES AS ABOVE WERE NOT REQUIRED TO BE USED AGAINST THE SIMPLE PROVISION BROUGHT IN THE ACT TO ENSURE THE COMPLIANCE OF FILING THE QUARTERLY TDS STATEMENTS. THE FILING OF THE STATEMENTS IN PRESCRIBED TIME HAS BEEN MADE COMPULSORY WITH SPECIFIC PURPOSE BY THE LEGISLATURE. THEREFORE, ONE CAN FIND IT A LITTLE BURDENSOME 14 BUT CERTAINLY NOT AS DECEITFUL, ATROCIOUS AND OBNOXIOUS. 2. NOW THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS :- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT(A)-II IS CONTRARY TO THE F ACTS OF THE CASE. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(0A ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING LATE FEES U/S 234E OF THE INCOME TAX ACT, 1961 (III) THE GROUNDS ON WHICH APPEAL IS DISMISSED BY L D. CIT(A) IS MERELY ON THE BASIS OF SURMISES AND CONJECTURES. (IV) THE ORDER U/S 200A OF THE INCOME TAX ACT, 1961 DOES NOT PERMIT LEVY OF LATE FEES U/S 234E OF THE 15 INCOME TAX ACT, 1961 HENCE INVALID, ILLEGAL AND NEEDS TO BE QUASHED. (V) THE PROVISION OF SEC. 204 OF THE INCOME TAX ACT , 1961 PERSON RESPONSIBLE FOR DUES U/S 192 TO SEC. 203AA AND SEC. 285 OF THE INCOME TAX ACT, 1961 DOES NOT COVER SEC. 234E OF THE INCOME TAX ACT, 1961 HENCE NONE OF THE PERSON HAS BEEN HELD RESPONSIBLE U/S 204 FOR THE DEFAULT U/S 234E, HENCE PRAYS TO QUASH THE ILLEGAL AND UNLAWFUL ORDER. (VI) LEVY OF LATE FEES U/S 234E OF THE INCOME TAX AC T, 1961 IS UNCONSTITUTIONAL BECAUSE DEDUCTOR IS ALREADY PENALIZED BY WAY OF INTEREST ON LATE PAYMENT U/S 201(1A). 3. IN ALL THESE GROUNDS THE MAIN ISSUE INVOLVED IS AGAI NST THE CONFIRMATION OF FEES LEVIED U/S 234E OF THE ACT. THE 16 ASSESSEE HAS TAKEN VARIOUS OBJECTIONS LIKE SECTION 200A OF THE ACT DOES NOT PERMIT LEVY OF LATE FEE U/S 234E OF THE ACT AND PROVISIONS OF SECTION 204 OF THE ACT WHERE PERSO N RESPONSIBLE FOR DUES U/S 192 TO 203AA AND SECTION 28 5 OF THE ACT DOES NOT COVER SECTION 234E OF THE ACT. IT WAS ALSO CLAIMED THAT THE DEDUCTOR HAS ALREADY BEEN PENALISED BY WAY OF INTEREST FOR LATE PAYMENT U/S 201(1A) OF THE ACT. 4. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. THE PROVISIONS OF SECTION 234E OF THE ACT INSERTED W.E. F. 1.7.2012 BY FINANCE ACT, 2012 READS AS UNDER :- 234E.(1) WITHOUT PREJUDICE TO THE PROVISIONS OF THE ACT, WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A STATEMENT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C, HE SHALL BE LIABLE TO PAY, BY WAY OF FEE, A SUM 17 OF TWO HUNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES. (2) THE AMOUNT OF FEE REFERRED TO IN SUB- SECTION (1) SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE, AS THE CASE MAY BE; (3) THE AMOUNT OF FEE REFERRED TO IN SUB- SECTION (1) SHALL BE PAID BEFORE DELIVERING OR CAUSING TO BE DELIVERED A STATEMENT IN ACCORDANCE WITH SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIVERED FOR TAX DEDUCTED AT SOURCE OR TAX 18 COLLECTED AT SOURCE, AS THE CASE MAY BE, ON OR AFTER THE IST DAY OF JULY, 2012. THUS, THE FEE U/S 234E SHALL HAVE TO BE PAID BEFORE DELIVERING A STATEMENT IN ACCORDANCE WITH SUB-SECTION ( 3) OF SECTION 200. THE ASSESSEE HAS NOT DONE SO. IT WOULD BE ALSO RELEVANT TO MENTION THAT LEVY OF FEE U/S 234E HAS NOT BEEN ENUMERATED IN SECTION 246A OF THE ACT WHERE ORD ERS APPEALABLE BEFORE CIT(A) HAVE BEEN PROVIDED. THE CONSTITUTIONAL VALIDITY OF THESE PROVISIONS WAS CHALLEN GED. WHILE DECIDING THE WRIT PETITION FILED UNDER ARTICL E 226 OF THE CONSTITUTION OF INDIA IN THE CASE OF RASHMIKANT KUNDALIA AND ANOTHER VS. UNION OF INDIA; 373 ITR 268 THE HON'BLE BOMBAY HIGH COURT HAS HELD THAT THESE PROVISI ONS ARE INTRA VIRES OF THE CONSTITUTION OF INDIA. THE HON' BLE HIGH COURT HAS ALSO MADE IT CLEAR THAT A SUBSTANTIAL NUMBER OF DEDUCTORS WERE NOT FURNISHING THEIR RETUR NS OR STATEMENT OF TAX DEDUCTED OR COLLECTED AT SOURCE WITH IN THE 19 PRESCRIBED TIME FRAME WHICH WAS ABSOLUTELY ESSENTIAL. THIS LED TO AN ADDITIONAL WORK BURDEN UPON THE DEPARTMENTDUE TO THE FAULT OF THE DEDUCTOR IN NOT FURNISHING THE INFORMATION IN TIME AND WHICH HE WAS STATUTORILY BOUND TO FURNISH. IT IS IN THIS LIGHT AND TO COMPENSATE FOR TH E ADDITIONAL WORK BURDEN FORCED UPON THE DEPARTMENT THAT A FEE WAS SOUGHT TO BE LEVIED U/S 234E OF THE ACT. TH E LEVY OF FEE U/S 234E OF THE ACT IS NOT PUNITIVE IN NATURE BU T A FEE WHICH IS FIXED CHARGE FOR THE EXTRA SERVICE WHICH THE DEPTT. HAS TO PROVIDE DUE TO THE LATE FILING OF THE STATEMENT S OF TAX DEDUCTED OR COLLECTED AT SOURCE. A PERSON DEDUCTING THE TAX (THE DEDUCTOR) IS ALLOWED TO FILE HIS STATEMENT OF T AX DEDUCTED AT SOURCE BEYOND THE PRESCRIBED TIME PROVID ED HE PAYS THE FEE AS PRESCRIBED UNDER SECTION 234E OF THE ACT. IN OTHER WORDS, THE LATE FILING OF THE RETURNS OR ST ATEMENTS OF TAX DEDUCTED OR COLLECTED AT SOURCE IS REGULARISED UPON PAYMENT OF THE FEE AS SET OUT IN SECTION 234E. THIS IS 20 NOTHING BUT A PRIVILEGE AND A SPECIAL SERVICE TO THE DEDUCTOR ALLOWING HIM TO FILE THE RETURNS OR STATEMEN TS OF TAX DEDUCTED OR COLLECTED AT SOURCE BEYOND THE TIME PRESCRIBED BY THE ACT OR THE RULES. THE FEE SOUGHT TO BE LEVIED UNDER SECTION 234E IS NOT IN THE GUISE OF A T AX THAT IS SOUGHT TO BE LEVIED ON THE DEDUCTOR. THE PROVISIONS OF SECTION 234E ARE NOT ONEROUS ON THE GROUND THAT THE SECTION DOES NOT EMPOWER THE ASSESSING OFFICER TO C ONDONE THE DELAY IN LATE FILING OF THE RETURNS OR STATEMENT S OF TAX DEDUCTED OR COLLECTED AT SOURCE, OR THAT NO APPEAL IS PROVIDED FOR FROM AN ARBITRARY ORDER PASSED UNDER SECTI ON 234E. IT MUST BE NOTED THAT A RIGHT OF APPEAL IS NOT A MATTER OF RIGHT BUT IS A CREATURE OF THE STATUTE AND IF THELEGISLATURE DEEMS IT FIT NOT TO PROVIDE A REMEDY O F APPEAL, SO BE IT. EVEN IN SUCH A SCENARIO IT IS NOT AS IF THE AGGRIEVED PARTY IS LEFT REMEDILESS. SUCH AGGRIEVED PER SON CAN ALWAYS APPROACH THE COURT IN ITS EXTRAORDINARY 21 EQUITABLE JURISDICTION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA AND IN THAT PERSPECTIVE THE HON' BLE HIGH COURT HELD THE PROVISION AS INTRA VIRES THE CONSTITUTION OF INDIA. 5. THE LEARNED AR WAS MADE CLEAR DURING THE APPELLATE PROCEEDINGS THAT THE LEVY OF FEES FOR DEFAULT IN FURN ISHING THE STATEMENT U/S 234E OF THE ACT IS NOT APPEALABLE AS PER THE PROVISIONS OF SECTION 246A OF THE ACT WHEREIN T HE ORDERS APPEALABLE BEFORE THE LEARNED CIT(A) HAVE BEEN ENUMERATED. CONSIDERING ALL THESE ASPECTS WE HOLD THAT THE LEVY OF FEES U/S 234E OF THE ACT WAS NOT APPEALABLE BEFORE THE LEARNED CIT(A). THE HON'BLE BOMBAY HIGH C OURT HAD MADE IT VERY CLEAR THAT LEVY OF FEE IS NOT PUNITIV E IN NATURE. IT IS LEVIED FOR SPECIAL SERVICE PROVIDED BY THE DEPARTMENT FOR LATE FILING OF STATEMENT. THE ASSESSING OFFICER HAS NO POWER TO CONDONE THE DELAY IN LATE FIL ING OF THE STATEMENT OF TAX. IN VIEW OF THESE FACTS AND RULIN G OF THE 22 HON'BLE HIGH COURT, THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE, HENCE THE SAME IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 11 TH JUNE, 2015. SD SD (D.T. GARASIA) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH JUNE, 2015 DN/-