The Punjab State Coop Bank Employees Pension Fund Trust, Chandigarh V. DCIT, Chandigarh

ITA 728/CHANDI/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95652 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2014-2015
• Appeal Filed On: 10-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L. KARWA, HONBLE VICE PRESIDENT AND MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NOS.728 TO 730/CHD/2015 ASSESSMENT YEAR:2014-15 THE PUNJAB STATE COOP BANK VS. THE DCIT EMPLOYEES PENSION FUND TRUST, CENTRALIZED PROCESS ING SCO, 175-187, SECTOR-34-A CELL-TDS, GHAZIABAD CHANDIGARH ORIGINAL JURISDICTION WITH ITO(TDS-2), CHANDIGARH PAN NO. AABTT3225D TAN NO. PTLT12921G (APPELLANT) (RESPONDENT) APPELLANT BY : SH. M.R. SHARMA RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 21/10/2015 DATE OF PRONOUNCEMENT : 28/10/2015 ORDER PER ANNAPURNA MEHROTRA A.M. ALL THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAI NST THE ORDER OF THE LD. CIT(A)CHANDIGARH DT. 15/05/2015. 2. THE ONLY ISSUE ARISING FOR CONSIDERATION IN THES E APPEALS IS WITH REGARD TO LEVY OF FEE UNDER SECTION 234 E OF THE INCOME TAX A CT 1961, WHILE PROCESSING THE STATEMENT FURNISHED BY THE ASSESSEE UNDER SECTION 2 00A OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT DURING THE IMPU GNED ASSESSMENT YEARS THERE WAS A DELAY ON THE PART OF THE ASSESSEE IN FI LING ITS QUARTERLY STATEMENT OF TDS. THE ASSESSEE RECEIVED AN INTIMATION UNDER SECT ION 200A LEVYING FEE UNDER SECTION 234 E FOR THE LATE FILING OF TDS STATEMENTS . THE ASSESSEE FILED AN APPEAL AGAINST THE INTIMATION TO THE LD. CIT(A) WHO DISMIS SED THE APPEAL OF THE 2 ASSESSEE AND HELD THAT THE FEE UNDER SECTION 234 E HAS TO BE MANDATORILY LEVIED AND THERE IS NO DISCRETION EITHER WITH THE AO OR TH E CIT(A) TO WAIVE THE SAME. 4. AGGRIEVED BY THE SAME THE ASSESSEE FILED THE PRE SENT APPEAL BEFORE US CHALLENGING THE LEVY OF FEES UNDER SECTION 234 E. 5. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE ARGUE D THAT AS ON THE DATE ON WHICH THE TDS RETURNS OF THE ASSESSEE WERE PROCESSE D U/S 200A I.E; 07/05/2014, NO FEE U/S 234E COULD BE LEVIED, WHILE PROCESSING T HE TDS RETURNS, SINCE THIS POWER WAS SPECIFICALLY INCORPORATED IN THE SECTION ONLY W.E.F 01/06/2015 BY THE FINANCE ACT 2015. THE LD. AR FURTHER STATED THAT T HE ASSESSEE CASE WAS DIRECTLY COVERED BY THE DECISION OF THE AMRITSAR BENCH OF TH E TRIBUNAL IN ITA NO. 90/ASR/2015 DT. 09/06/2015 AND THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN ITA NO. 1091/MDS/2015. 6. THE LD. DR ON THE OTHER HAND RELIED UPON THE ORD ER OF THE LD. CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RELEVANT MATERIAL PLACED ON RECORD. 8. WE FIND THAT THE INTIMATION UNDER SECTION 200A, IN WHICH THE LATE FILING FEE UNDER SECTION 234E WAS LEVIED, WAS DT. 07/05/2014. ON THE SAID DATE THE APPLICABLE PROVISIONS OF SECTION 200A WAS AS FOLLOW S: 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT S OURCE OR A CORRECTION STATEMENT HAS BEEN MADE BY A PERSON DEDUCTING ANY S UM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200, SUC H STATEMENT SHALL BE PROCESSED 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 ANY INFORMA TION IN THE STATEMENT; (B) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; A BARE PERUSAL OF THE READING OF SECTION 200A MAKES IT CLEAR THAT WHILE PROCESSING TDS STATEMENTS UNDER SECTION 200A THE ON LY ADJUSTMENTS WHICH COULD BE MADE WERE ON ACCOUNT OF ANY ARITHMETICAL ERROR I N THE STATEMENT OR ANY INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN TH E STATEMENT OR THE LEVY OF ANY INTEREST ON TDS. NO OTHER ADJUSTMENT COULD BE M ADE WHILE PROCESSING THE 3 TDS STATEMENTS UNDER SECTION 200A. THE LEVY OF FEE UNDER SECTION 234E, IN THE IMPUGNED CASE WAS CLEARLY THEREFORE BEYOND THE POWE RS PRESCRIBED UNDER SECTION 200A. IT IS PERTINENT TO POINT OUT THAT BY VIRTUE OF AMENDMENT TO SECTION 200A BROUGHT ABOUT BY THE FINANCE ACT 2015, WITH EF FECT FROM 01/06/2015 , THE POWER TO LEVY FEES UNDER SECTION 234E HAS BEEN SPEC IFICALLY INCORPORATED UNDER SECTION 200A. THUS PRIOR TO 01/06/2015 NO FEE UNDER SECTION 234E COULD BE LEVIED WHILE PROCESSING TDS STATEMENTS UNDER SECTION 200A. THIS VIEW HAS BEEN AFFIRMED BY THE AMRITSAR BENCH OF THE ITAT IN CASE OF SIBLA HEALTHCARE PRIVATE LIMITED VS. DCIT(TDS) IN ITA NO. 90/ASR/2015 DT 09/06/2015, WHE REIN THE LEVY OF FEE UNDER SECTION 234E WHILE PROCESSING TDS STATEMENTS U/S 2 00A PRIOR TO 01/06/2015 WAS DELETED BY HOLDING AT PARA 10 AS FOLLOWS: 10. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONS IDERED VIEW, THE ADJUSTMENT IN RESPECT OF LEVY OF FEES UNDER SECTION 234E WAS INDE ED BEYOND THE SCOPE OF PERMISSIBLE ADJUSTMENTS CONTEMPLATED UNDER SECTION 200A. THIS INTIMATION IS AN APPEALABLE ORDER UNDER SECTION 246A(A), AND, THEREF ORE, THE CIT(A) OUGHT OT HAVE EXAMINED LEGALITY OF THE ADJUSTMENT MADE UNDER THIS INTIMATION IN THE LIGHT OF THE SCOPE OF THE SECTION 200A. LEARNED CIT(A) HA S NOT DONE SO. HE HAS JUSTIFIED THE LEVY OF FEES ON THE BASIS OF THE PROVISIONS OF SECTION 234E. THAT IS NOT THE ISSUE HERE. THE ISSUE IS WHETHER SUCH A LEVY COULD BE EFF ECTED IN THE COURSE OF INTIMATION UNDER SECTION 200A. THE ANSWER IS CLEARL Y IN NEGATIVE. NO OTHER PROVISION ENABLING A DEMAND IN RESPECT OF THIS LEVY HAS BEEN POINTED OUT TO US AND IT IS THUS AN ADMITTED POSITION THAT IN THE ABS ENCE OF THE ENABLING PROVISION UNDER SECTION 200A, NO SUCH LEVY COULD BE EFFECTED. AS INTIMATION UNDER SECTION 200A, RAISING A DEMAND OR DIRECTING A REFUND TO THE TAX DEDUCTOR, CAN ONLY BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIA L YEAR WITHIN WHICH THE RELATED TDS STATEMENT IS FILED, AND AS THE RELATED TDS STATEMENT WAS FILED ON 19 TH FEBRUARY 2014, SUCH A LEVY COULD ONLY HAVE BEEN MAD E AT BEST WITHIN 31 ST MARCH 2015. THAT TIME HAS ALREADY ELAPSED AND THE DEFECT IS THUS NOT CURABLE EVEN AT THIS STAGE. IN VIEW OF THESE DISCUSSIONS, AS ALSO B EARING IN MIND ENTIRETY OF THE CASE, THE IMPUGNED LEVY OF FEES UNDER SECTION 234E IS UNSUSTAINABLE IN LAW. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DELETE THE IMPUGNED LEVY OF FEE UNDER SECTION 234E OF THE ACT. THE ASSESSEE GET S THE RELIEF ACCORDINGLY. FOLLOWING THIS ORDER THE CHENNAI BENCH OF THE ITAT HAS ALSO DELETED THE LEVY OF FEE UNDER SECTION 234 E WHILE PROCESSING ST ATEMENT OF TAX DEDUCTED AT SOURCE UNDER SECTION 200A PRIOR TO 01/06/2015 VIDE THEIR ORDER IN ITA NO. 1019, 1020 & 1021/MDS/2015 DT. 10/07/2015 BY HOLDING AT P ARA 11 OF THE ORDER AS FOLLOWS: 11. IN VIEW OF THE ABOVE DISCUSSION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS EXCEEDED HIS JURISDICTION IN LEVYING FEE UNDER SECTION 234E WHILE PROCESSING THE STATEMENT AND MAKE ADJUST MENT 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 I N LAW. 4 9. AT THIS JUNCTURE IT IS IMPERATIVE TO STATE THAT THE BENCH HAS ONLY ADJUDICATED UPON THE ISSUE OF LEVY OF FEE U/S 234E WHILE PROCESSING TDS STATEMENTS U/S 200A AND NOT THE LEVY OF FEE U/S 234 E PER SE. IN FACT WITH RESPECT TO THE SAME WE CONCUR WITH THE VIEW OF LD. CIT(A) T HAT THE SAME HAS TO BE MANDATORILY LEVIED AND CANNOT BE WAIVED. BUT, PRIOR TO 01/06/2015, THE AO CANNOT LEVY THE SAME WHILE PROCESSING TDS STATEMENT S U/S 200A. THE AO CAN PASS A SEPARATE ORDER LEVYING SUCH FEE. 10. IN VIEW OF THE ABOVE DISCUSSION WE ARE OF THE C ONSIDERED VIEW THAT THE AO HAD EXCEEDED HIS JURISDICTION IN LEVYING FEE UND ER SECTION 234E WHILE PROCESSING THE STATEMENT UNDER SECTION 200A OF THE ACT AND THEREFORE THE INTIMATION BY THE LOWER AUTHORITY CANNOT BE SUSTAIN ED IN LAW. HOWEVER, IT IS OPEN TO THE AO TO PASS A SEPARATE ORDER UNDER SECTION 23 4E LEVYING FEE FOR DELAY IN FILING STATEMENT UNDER SECTION 200 (3) OF THE ACT, PROVIDED THE LIMITATION FOR SUCH A REMEDY HAS NOT EXPIRED. ACCORDINGLY THE INTIMATIO N UNDER SECTION 200A SET ASIDE AND THE FEE LEVIED IS DELETED. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/10/2015. SD/- SD/- (H.L. KARWA) (ANNAPURNA MEHROTRA) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 28/10/2015 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR