CHILD DEVELOPMENT PROJECT OFFICE, AJMER V. ASSISTANT COMMISSIONER OF INCOME TAX, CPC, (TDS), GHAJIABAD

ITA 96/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9434 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 28-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA CIT DHK
• Keywords: Capital asset; Principle of natural justice; Reasonable cause; Condonation of delay; TDS
• Section: 234E; 200A; 201; 192; 13

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES SMC, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA NO. 96/JP/2019 FINANCIAL YEAR : 2017-18 (24Q 1 ST QUARTER) CHILD DEVELOPMENT PROJECT OFFICE- SHRINAGAR, 1, SHRINAGAR, AJMER-305001. C UKE VS. A.C.I.T., CPC (TDS), GAZIABAD. TAN NO.: JDHC01899C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING: 18/08/2020 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 19/08/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17/05/2018 OF LD. CIT(A), AJMER FOR THE FINANCIAL YEAR 2017-18 (24Q 1 ST QUARTER) ARISING FROM THE LEVY OF LATE FEE U/S 234E OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) WHILE ISSUING THE INTIMATION U/S 200A OF THE ACT FOR THE FIRST QUARTER OF F.Y. 2017-18. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESPITE NOTICES ISSUED THROUGH RPAD ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 2 AS WELL AS INTIMATION GIVEN ON THE MOBILE AVAILABLE ON RECORD. ACCORDINGLY, WE PROPOSE TO HEAR AND DISPOSE OF THIS APPEAL EX PARTE. 3. THE APPEAL OF THE ASSESSEE IS FILED BELATEDLY OF 170 DAYS. THERE IS NO APPLICATION FOR CONDONATION OF DELAY ON BEHALF OF THE ASSESSEE, THEREFORE, THE APPEAL OF THE ASSESSEE IS NOT A VALID APPEAL. HOWEVER, THE ISSUE RAISED IN THIS APPEAL IS OTHERWISE COVERED BY THE VARIOUS DECISIONS OF THIS TRIBUNAL BY TAKING A CONSISTENT VIEW. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE ASSESSE HAS FILED AN APPEAL WITH LD CIT(APPEALS) AJMER AGAINST THE INTIMATION DATED 05/05/2016 ISSUED UNDER SECTION 200A OF IT ACT 1961 LEVYING LATE FILING FEE OF RS 69200/- U/S 234 BY ACIT, CPC(TDS) GHAZIABAD(TDS RETURN RELATES TO 24Q 1 ST QTR. (2017-2018). 2. AS PER PROVISION OF SEC. 234 E LATE FEE CANNOT BE RECOVERED FOR TDS STATEMENTS WHICH WERE DUE FOR F.Y 2016-17 AS WELL ON TDS STATEMENTS LATE FEE CANNOT BE RECOVERED FOR F.Y 16-17 IF NOT COLLECTED AT THE TIME OF DELIVERING TDS STATEMENTS TO THE DEPTT. PROVISION OF SEC. 234 E HAS BEEN MADE APPLICANT WITH EFFECT FROM 1 ST JULY 2012. IT STATES THAT 'AMOUNT OF LATE FEE SHALL BE PAID BEFORE DELIVERING A TDS STATEMENT'. IT MEANS THAT ANY LATE FEE SHOULD HAVE FEE DEPOSITED JUST AT THE TIME OF DELIVERING TDS STATEMENTS & NOT LATER THAN THIS. THE AUTHORIZED TIN-NSDL CENTRE WHICH ACCEPTED THE TDS STATEMENTS ALSO ACCEPTED THERE WITHOUT LATE FEE, AS WELL AS THE SOFTWARE UTILITY OF THE TDS DEPTT. IT SELF- ACCEPTED THESE WITHOUT LATE FEE. 3. THAT THE TDS CPC HAS IMPOSED AUTOMATICALLY AND NOT TAKEN INTO CONSIDERATION FACTS AND CIRCUMSTANCES OF THE CASE WHY THE RETURN HAS BEEN DELAYED AND THUS THE BASIC CONCEPT OF NATURAL JUSTICE AN OPPORTUNITY OF BEING HERD NOT GIVEN TO ASSESSEE. FURTHER THE LD. CIT (APPEALS), HAS ALSO NOT TAKEN INTO ACCOUNT ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 3 THE SAME WHICH IS AGAINST JUSTICE AND EQUITY AND THUS PREJUDICE. 4. THE TAX WAS DEDUCTED AND DEPOSITED IN TIME, THE ONLY DEFAULT IN DELAY IN FILING OF THE RETURN, THE ALLEGED DELAY IN FILING THE TDS STATEMENT HAS NOT RESULTED IN ANY LOSS OF REVENUE TO THE DEPARTMENT AND, THEREFORE, THE DEFAULT, IF ANY, WAS PURELY VENIAL BREACH. THE ASSESSEE WAS BEING GOVT. ORGANISATION WORKING IN PUBLIC INTEREST AND THERE WAS NO MALA FIDE INTENTION OF NOT TILING THE TDS RETURN AT SOURCE WITHIN TIME. THAT WHEN THE TAX HAD BEEN DEPOSITED IN TIME. THERE COULD NOT HAVE ANY OBJECT OR INTENTION AS THE PART OF ASSESSEE NOT TO SUBMIT THE RETURN IN TIME. 5. IT IS ALSO RELEVANT TO NOTE THAT THE LAW HAS NOT MADE ANY PERSON RESPONSIBLE, TO DEPOSIT LATE FEE, IN CASE OF DEFAULT IN DEPOSITING LATE FEE ALONG WITH TDS STATEMENT, WHICH CAN BE INFERRED FROM THE PROVISIONS OF SEC. 204 OF THE ACT SECTION 204 PARTICULARLY STATES THAT 'FOR THE PURPOSES OF SEC. 190 TO SEC. 203 AND FOR SEC. 285 OF THE ACT THE FOLLOWING PERSONS WOULD BE RESPONSIBLE', SO IT IS CLEAR THAT FOR THE PURPOSE OF SEC. 234E NONE OF THE PERSON HAS BEEN MADE RESPONSIBLE, THEREFORE IF ANY LATE FEE IS DUE AND NOT DEPOSITED ALONG WITH THE TDS STATEMENT NONE CAN BE HELD RESPONSIBLE TO DEPOSIT IT. IN OUR CASE THE DEDUCTOR IS GOVERNMENT SO AS PER LAW GOVERNMENT CANNOT BE HELD RESPONSIBLE PERSON TO DEPOSIT IT. 6. IN THE FACTS & CIRCUMSTANCES OF THE CASE THE LEARNED A.O. ERRED IN IMPOSING LATE FEE WITHOUT APPRECIATING THE FACTS & CIRCUMSTANCES OF THE CASE AND HENCE THE SAME SHOULD BE DELETED. 7. THAT THE ORDER IS BAD IN LAW. 8. THE APPELLANT CARVES LEAVE TO ADD, AMEND, ALTER, VARY AND OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL WITH THE PRIOR PERMISSION OF THE CHAIR. ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 4 4. THE ASSESSEE IS CHALLENGING THE LEVY OF LATE FEE U/S 234E OF THE ACT WHILE ISSUING THE INTIMATION U/S 200A OF THE ACT OF QUARTERLY TDS STATEMENT FILED BY THE ASSESSEE BELATEDLY. THE ASSESSEE HAS FILED WRITTEN SUBMISSION BEFORE THE LD. CIT(A) WHICH ARE REPRODUCED IN PARA 3.1 AS UNDER: 3.1 THE APPELLANT HAS FILED FOLLOWING WRITTEN SUBMISSIONS ON THIS ISSUE: '1. LATE FEES U/S.234E OF THE IT ACT 1961 1.1) PROVISIONS OF SEC. 234E MADE APPLICABLE W.E.F 1ST JULY, 2012 STATES THAT ' AMOUNT OF LATE FEE SHALL BE PAID BEFORE DELIVERING A TDS STATEMENT', IT MEANS THAT ANY LATE FEE SHOULD HAVE BEEN DEPOSITED JUST AT THE TIME OF DELIVERING TDS STATEMENT AND NOT LATER THAN THIS. THE AUTHORIZED TIN- NSDL CENTRE WHICH ACCEPTED THE TDS STATEMENT ALSO ACCEPTED THESE WITHOUT LATE FEE, AS WELL AS THE SOFTWARE UTILITY OF THE TDS DEPARTMENT ITSELF ACCEPTED THESE WITHOUT LATE FEE. ONCE THE TDS STATEMENT HAS BEEN ACCEPTED WITHOUT LATE FEE, THEN SUCH LATE FEE CANNOT BE RECOVERED LATER ON. HENCE THE ORDER ISSUED U/S 200A LEVYING LATE FEES U/S 234E AFTER DELIVERING TDS STATEMENT IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. HENCE LIABLE TO BE QUASHED. 1.2 IT IS HEREBY WORTHWHILE TO MENTIONED THAT THE DELAY IS ONLY TECHNICAL, AS TAX WAS DEDUCTED & DEPOSITED IN TIME, ALSO NO LOSS TO REVENUE. THE PROCESSING OF 24Q CANNOT BE COMPLETED WITHOUT 24 Q4 IE ANNUAL DETAIL BEING PROCESSED & GENERATION OF FORM 16. THE DUE DATE IS 31/05/2016.IT HAS FILED BEFORE THIS DATE. NO LOSS TO ANY PERSON TO WHOM 24Q RELATES. IN 1972(83 ITR PAGE 26(SC),1998 (4 DTC-150, JAIPUR TRIBUNAL) 1998 ITJ PG 427 HELD THERE IS NO FAULT ON THE PART OF APPELLANT EIGHTEEN IN DEDUCTION AND DEPOSITING THE SAME IN GOVERNMENT ACCOUNT . THE ONLY DEFAULT IS IN FURNISHING THE STATEMENT OF TDS IN FORM 26/24 WHICH IN VIEW APPELLANTS EXPLANATION IS ONLY TECHNICAL DEFAULT FOR WHICH SUCH PENAL ACTION IS NOT JUSTIFIED BECAUSE THE APPELLANT DEFAULT IS PURELY TECHNICAL OR VIRAL. ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 5 IN (2000) 23TW PG 248 REVENUE HAS NOT SUFFERED ANY LOSS ON A/C OF DELAY IN SUBMISSION OF FORM H OBTAIN BY VARIOUS DEPOSITOR NO PENALTY ITAT JODHPUR BENCH. IN 2003 VOLUME 69 PG337 RAJ HIGH COURT ,2002 177 CTR 586 RAJ HIGH COURT TAX 192 HELD THAT THE TAX DEDUCTED AND DEPOSITED WITH STATE EXCHEQUER. IN CASE OF EVEDANT OFFICE MISTAKE IT WOULD NOT BE GOOD EXERCISE OF JUDICIAL & QUASI JUDICIAL POWER TO INFLICT A PENALTY ON HEAD OF PUBLIC OFFICE WHO WAS IGNORANT ABOUT RELEVANT PROVISION & BONAFIDE BREACH CANNOT LED TO PENALTY IN 272(AC). 1.3 IT IS ALSO RELEVANT TO NOTE THAT THE LAW HAS NOT MADE ANY PERSON RESPONSIBLE, TO DEPOSIT LATE FEE, IN CASE OF DEFAULT IN DEPOSITING LATE FEE ALONG WITH TDS STATEMENT, WHICH CAN BE INFERRED FROM THE PROVISIONS OF SEC. 204 OF THE ACT WHICH SPECIFICALLY STATES AS UNDER: 'SEC. 204 OF THE ACT, FOR THE PURPOSES OF [THE FOREGOING PROVISIONS OF THIS CHAPTER] AND SECTION 285, THE EXPRESSION 'PERSON RESPONSIBLE FOR PAYING' MEANS IN THE CASE OF PAYMENTS OF INCOME CHARGEABLE UNDER THE HEAD 'SALARIES', OTHER THAN PAYMENTS BY THE CENTRAL GOVERNMENT OR THE GOVERNMENT OF A STATE, THE EMPLOYER HIMSELF OR, IF THE EMPLOYER IS A COMPANY, THE COMPANY ITSELF, INCLUDING THE PRINCIPAL OFFICER THEREOF IN THE CASE OF PAYMENTS OF INCOME CHARGEABLE UNDER THE HEAD 'INTEREST ON SECURITIES', OTHER THAN PAYMENTS MADE BY OR ON BEHALF OF THE CENTRAL GOVERNMENT OR THE GOVERNMENT OF A STATE, THE LOCAL AUTHORITY, CORPORATION OR COMPANY, INCLUDING THE PRINCIPAL OFFICER THEREOF [(IIA) IN THE CASE OF ANY SUM PAYABLE TO A NON-RESIDENT INDIAN, BEING ANY SUM REPRESENTING CONSIDERATION FOR THE TRANSFER BY HIM OF ANY FOREIGN EXCHANGE ASSET, WHICH IS NOT A SHORT-TERM CAPITAL ASSET, THE [AUTHORISED PERSON] RESPONSIBLE FOR REMITTING SUCH SUM TO THE NON-RESIDENT INDIAN OR FOR CREDITING SUCH SUM TO HIS NONRESIDENT (EXTERNAL) ACCOUNT MAINTAINED IN ACCORDANCE WITH [THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999 (42 OF 1999)1, AND ANY RULES MADE THEREUNDER) [IN THE CASE OF CREDIT, OR, AS THE CASE MAY BE, PAYMENT] OF ANY OTHER SUM CHARGEABLE UNDER THE PROVISIONS OF THIS ACT, THE PAYER HIMSELF OR, IF THE PAYER IS A COMPANY, THE COMPANY ITSELF INCLUDING THE PRINCIPAL OFFICER THEREOF ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 6 IN THE CASE OF CREDIT, OR AS THE CASE MAY BE, PAYMENT OF ANY SUM CHARGEABLE UNDER THE PROVISIONS OF THIS ACT MADE BY OR ON BEHALF OF THE CENTRAL GOVERNMENT OR THE GOVERNMENT OF A STATE, THE DRAWING AND DISBURSING OFFICER OR ANY OTHER PERSON, BY WHATEVER NAME CALLED, RESPONSIBLE FOR CREDITING, OR AS THE CASE MAY BE, PAYING SUCH SUM.] ' SECTION 204 PARTICULARLY STATES THAT 'FOR THE PURPOSES OF SEC. 190 TO SEC. 203 AND FOR SEC. 285 OF THE ACT THE FOLLOWING PERSONS WOULD BE RESPONSIBLE', SO IT IS CLEAR THAT FOR THE PURPOSE OF SEC. 234E NONE OF THE PERSON HAS BEEN MADE RESPONSIBLE, THEREFORE IF ANY LATE FEE IS DUE AND NOT DEPOSITED ALONG WITH THE TDS STATEMENT NONE CAN BE HELD RESPONSIBLE TO DEPOSIT IT. IN OUR CASE THE DEDUCTOR IS GOVERNMENT SO AS PER LAW GOVERNMENT CANNOT BE HELD RESPONSIBLE PERSON TO DEPOSIT IT. 1.4) THE CENTRAL BOARD OF DIRECT TAX IS ALSO EXAMINING THE DESIRABILITY AND EXPEDIENCY OF PRESCRIBING SITUATIONS/CIRCUMSTANCES UNDER WHICH LEVY OF FEE UNDER SECTION 234E MAY CAUSE GENUINE HARDSHIP TO TAXPAYERS, TO WAIVE LATE FEES. 1.5 IT IS FURTHER WORTHWHILE THAT HONOURABLE BOMBAY HIGH COURT, IN THE CASE OF RASHMIKANT KUNDALIA AND ANOTHER VS UNION OF INDIA AND OTHERS HAS UPHELD THE CONSTITUTIONAL VALIDITY OF THE SECTION 234E OF THE INCOME TAX ACT, 1961 WHICH DEALS WITH FEES FOR LATE FILING OF TDS/TCS RETURNS. AGAINST THE BOMBAY HIGH COURT ORDER AN SPECIAL LEAVE PETITION(SLP) WITH SUPREME COURT AND SAME IS BEEN ADMITTED BY HON'BLE SUPREME COURT. IN SUCH CASES NO RECOVERY COULD EXECUTED IN THE INTEREST OF JUSTICE & YOUR HONOR REQUESTED TO DECIDE APPEAL BY DIRECTING THE AO FOR THE FATE OF SUPREME COURT DECISION SO AS TO MAKE RECTIFICATION. IN COMPLIANCE TO YOUR ORDER. THERE WOULD BE PROPER JUSTICE TO CONSIDER THE FATE OF SUPREME COURT JUDGMENT AS SLP ACCEPTED BY HONORABLE SUPREME COURT. IT WAS HELD IN THAT HONOURABLE BOMBAY HIGH COURT THAT S. 234E: THE LATE FILING OF TDS RETURNS BY THE DEDUCTOR CAUSES INCONVENIENCE TO EVERYONE AND S. 234E LEVIES A FEE TO REGULARIZE THE SAID LATE FILING. THE FEE IS NOT IN THE GUISE OF A TAX NOR IS IT ONEROUS. THE LEVY IS CONSTITUTIONALLY VALID. ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 7 THE LATE SUBMISSION OF TDS STATEMENTS MEANS THE DEPARTMENT IS BURDENED WITH EXTRA WORK WHICH IS OTHERWISE NOT REQUIRED IF THE TDS STATEMENTS WERE FURNISHED WITHIN THE PRESCRIBED TIME. THIS FEE IS FOR THE PAYMENT OF THE ADDITIONAL BURDEN FORCED UPON THE DEPARTMENT. A PERSON DEDUCTING THE TAX (THE DEDUCTOR), IS ALLOWED TO FILE HIS TDS STATEMENT BEYOND THE PRESCRIBED TIME PROVIDED HE PAYS THE FEE AS PRESCRIBED UNDER SECTION 234E OF THE ACT. IN OTHER WORDS, THE LATE FILING OF THE TDS RETURN/STATEMENTS IS REGULARISED UPON PAYMENT OF THE FEE AS SET OUT IN SECTION 234E. THIS IS NOTHING BUT A PRIVILEGE AND A SPECIAL SERVICE TO THE DEDUCTOR ALLOWING HIM TO FILE THE TDS RETURN/STATEMENTS BEYOND THE TIME PRESCRIBED BY THE ACT AND/OR THE RULES. WE THEREFORE CANNOT AGREE WITH THE ARGUMENT OF THE PETITIONERS THAT THE FEE THAT IS SOUGHT TO BE COLLECTED UNDER SECTION 234E OF THE ACT IS REALLY NOTHING BUT A COLLECTION IN THE GUISE OF A TAX 1.6 AS PER [2017] 83 TAXMANN.COM 137 (GUJARAT) HIGH COURT OF GUJARAT RAJESH KOURANI VS UNION OF INDIA( AKIL KURESHI AND BIREN VAISHNAV, JJ. SPECIAL CIVIL APPLICATION NO. 302 OF 2014 JUNE 20, 2017 IT WAS HELD THAT SECTION 200A IS A MACHINERY PROVISION AND AT BEST PROVIDES FOR A MECHANISM FOR PROCESSING AND COMPUTING BESIDES OTHER, FEE PAYABLE UNDER SECTION 234E FOR LATE FILING OF STATEMENTS, IT CANNOT OVERRIDE OR OVERRULE A CHARGING PROVISION LIKE SECTION 234E SECTION 200A IS A MACHINERY PROVISION PROVIDING MECHANISM FOR PROCESSING A STATEMENT OF DEDUCTION OF TAX AT SOURCE AND FOR MAKING ADJUSTMENTS, WHICH ARE, ARITHMETICAL OR PRIMA FACIE IN NATURE. WITH EFFECT FROM 1-6-2015, THIS PROVISION SPECIFICALLY PROVIDES FOR COMPUTING THE FEE PAYABLE UNDER SECTION 234E. ON THE OTHER HAND, SECTION 234E IS A CHARGING PROVISION CREATING A CHARGE FOR LEVYING FEE FOR CERTAIN DEFAULTS IN FILING THE STATEMENTS. UNDER NO CIRCUMSTANCES A MACHINERY PROVISION CAN OVERRIDE OR OVERRULE A CHARGING PROVISION. SECTION 200A DOES NOT CREATE ANY CHARGE IN ANY MANNER. IT ONLY PROVIDES A MECHANISM FOR PROCESSING A STATEMENT FOR TAX DEDUCTION AND THE METHOD IN WHICH THE SAME WOULD BE DONE. EVEN IN ABSENCE OF SECTION 200A WITH INTRODUCTION OF SECTION 234E, IT WAS ALWAYS OPEN FOR THE REVENUE TO DEMAND AND COLLECT THE FEE FOR LATE FILING OF THE STATEMENTS. SECTION 200A WOULD MERELY REGULATE THE MANNER IN WHICH THE COMPUTATION OF SUCH FEE WOULD BE MADE AND DEMAND RAISED. THUS, THE VIEW THAT WITHOUT A REGULATORY PROVISION BEING FOUND FOR SECTION 200A FOR COMPUTATION OF FEE, THE FEE PRESCRIBED UNDER SECTION 234E CANNOT BE LEVIED IS ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 8 UNACCEPTABLE. ANY SUCH VIEW WOULD AMOUNT TO A CHARGING SECTION YIELDING TO THE MACHINERY PROVISION. THE CONCEPT OF NATURAL JUSTICE AND OPPORTUNITY OF BEING HERD SHOULD BE GIVEN BEFORE LEVYING 234E OF IT ACT 1961.AS HELD BY RAJ. HIGH COURT IN (1995) 96STC 502(RAJ) THAT WHEN THE TAX HAD BEEN DEPOSITED IN TIME, THERE COULD NOT HAVE ANY OBJECT OR INTENTION ON THE PART OF THE DEDUCTOR NOT TO SUBMIT THE RETURN IN TIME. YOUR HONOR, IN VIEW OF ALL ABOVE KINDLY ACCEPT OUR APPEAL & OBLIGE US.' THUS, IT IS UNDISPUTED FACT THAT THE QUARTERLY STATEMENT FOR THE FIRST QUARTER OF F.Y. 2017-18 IN FORM NO. 24Q WAS FILED BY THE ASSESSEE BELATEDLY AND THE A.O. WHILE PROCESSING THE SAID TDS STATEMENT HAS LEVIED THE LATE FILING FEE U/S 234E OF THE ACT OF RS. 69,200/- AND MADE ADJUSTMENT WHILE ISSUING INTIMATION U/S 200A OF THE ACT. IT IS PERTINENT TO NOTE THAT IN THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BEFORE THE LD. CIT(A), THE ASSESSEE HAS ADVANCED THE PLEA OF REASONABLENESS AND TRIED TO EXPLAIN THE BONAFIDE AND REASONABLE CAUSE FOR THE DELAY IN SUBMITTING THE QUARTERLY TDS STATEMENT. 5. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE LEVY OF LATE FEE U/S 234E READ WITH CLAUSE (C) OF SECTION 200A(1) OF THE ACT IS MANDATORY AND CONSEQUENTIAL IN NATURE AND THEREFORE, THE SAME CANNOT BE DELETED ON THE GROUND OF REASONABLENESS. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD AT THE OUTSET WE NOTE THAT AN IDENTICAL ISSUE HAS BEEN ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 9 CONSIDERED BY THIS TRIBUNAL IN THE CASE OF GOVERNMENT SECONDARY SCHOOL PRINCIPAL OFFICER VS ACIT, CPC-TDS, GAZIABAD IN ITA NO. 964/JP/2019 VIDE ORDER DATED 24/06/2020 IN PARA 6 AND 7 AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THERE WAS DELAY OF 315 DAYS IN SUBMITTING THE QUARTERLY TDS STATEMENT FOR THE QUARTER NO. 1 OF F.Y. 2017-18 AS THE ASSESSEE FILED THE SAID STATEMENT ONLY ON 14/06/2018 AS AGAINST THE DUE DATE OF 31/07/2017. THE TDS STATEMENT FILED BY THE ASSESSEE ON 14/06/2018 WAS PROCESSED BY THE A.O. ON 19/06/2018 AND AN INTIMATION U/S 200A OF THE ACT WAS ISSUED WHEREBY THE A.O. MADE AN ADJUSTMENT OF RS. 63,000/- ON ACCOUNT OF LATE FILING FEE U/S 234E OF THE ACT. CHAPTER XVII OF THE ACT CAST OBLIGATION ON PERSONS RESPONSIBLE FOR PAYING CERTAIN AMOUNTS TO DEDUCT TDS AS WELL AS TCS AT SOURCE. THE DISPUTE BEFORE US IN THIS APPEAL OF THE ASSESSEE IS REGARDING THE OBLIGATION OF TDS AND SUBMISSION OF QUARTERLY TDS STATEMENTS AS REQUIRED U/S 200(3) OF THE ACT, WHICH READS AS UNDER: SECTION 200- DUTY OF PERSON DEDUCTING TAX. [(3) ANY PERSON DEDUCTING ANY SUM ON OR AFTER THE 1ST DAY OF APRIL, 2005 IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CHAPTER OR, AS THE CASE MAY BE, ANY PERSON BEING AN EMPLOYER REFERRED TO IN SUB- SECTION (1A) OF SECTION 192 SHALL, AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME, 24 [PREPARE SUCH STATEMENTS FOR SUCH PERIOD AS MAY BE PRESCRIBED] AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY 2 5 OR THE PERSON AUTHORISED BY SUCH AUTHORITY SUCH STATEMENT IN SUCH FORM 2 6 AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRESCRIBED:] [ PROVIDED THAT THE PERSON MAY ALSO DELIVER TO THE PRESCRIBED AUTHORITY A CORRECTION STATEMENT FOR RECTIFICATION OF ANY MISTAKE OR TO ADD, DELETE OR UPDATE THE INFORMATION FURNISHED IN THE STATEMENT DELIVERED UNDER THIS SUB-SECTION IN SUCH FORM AND VERIFIED IN SUCH MANNER AS MAY BE SPECIFIED BY THE AUTHORITY.] ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 10 THE QUARTERLY TDS STATEMENT AS WELL AS ANNUAL TDS RETURNS ARE REQUIRED TO BE PROCESSED U/S 200A OF THE ACT WHICH READS AS UNDER: PROCESSING OF STATEMENTS OF TAX DEDUCTED AT SOURCE . 200A. (1) WHERE A STATEMENT OF TAX DEDUCTION AT SOURCE 12 [OR A CORRECTION STATEMENT] HAS BEEN MADE BY A PERSON DEDUCTING ANY SUM (HEREAFTER REFERRED TO IN THIS SECTION AS DEDUCTOR) UNDER SECTION 200 , SUCH STATEMENT SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: ( A ) THE SUMS DEDUCTIBLE UNDER THIS CHAPTER SHALL BE COMPUTED AFTER MAK ING T HE FOLLOWING ADJUSTMENTS, NAMELY: ( I ) ANY AR ITHMETICAL ER ROR IN THE STATEMENT; OR ( II ) AN INCORRECT CLAIM, APPARENT FROM ANY INFORMATION IN THE STATEMENT; ( B ) THE INTEREST, IF ANY, SHALL BE COMPUTED ON THE BASIS OF THE SUMS DEDUCTIBLE AS COMPUTED IN THE STATEMENT; 13 [( C ) T HE FE E, IF ANY, SHALL BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E ; ( D ) THE SUM PAYABLE BY, OR THE AMOUNT OF REFU ND DUE TO, THE DEDUC TOR S H ALL B E 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 AND SENT TO THE DEDUCTOR SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, HIM UNDER CLAUSE ( D ); AND ( F ) THE AMOUNT OF REFUND DUE TO THE DE DUCTOR IN PURSUANCE OF T H E DETE RMINATION UNDER CLAUSE ( D ) 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 FINANCIAL YEAR IN WHICH THE STATEMENT IS FILED. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, 'AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE STATEMENT' SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE STATEMENT ( I ) OF AN ITEM, WHICH IS INCO NSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME O THER ITEM IN SUCH STATEMENT; ( II ) IN RESPECT OF RATE OF DEDUCTION OF TAX AT SOURCE, WHERE SUCH RATE IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT. ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 11 (2) FOR THE PURPOSES OF PROCESSING OF STATEMENTS UNDER SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME 14 FOR CENTRALISED 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.] SECTION 200A(1) OF THE ACT ENVISAGES THE METHOD AND VARIOUS ADJUSTMENTS WHICH ARE REQUIRED TO BE MADE BY THE A.O. WHILE PROCESSING THE STATEMENT OF TDS AND ISSUING INTIMATION. CLAUSE (C) OF SUB SECTION (1) OF SECTION 200A OF THE ACT PROVIDES FOR ADJUSTMENT ON ACCOUNT OF FEE IF ANY TO BE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OF THE ACT. THEREFORE, IN CASE, THERE IS A DEFAULT OR DELAY IN SUBMITTING THE TDS STATEMENTS, A LATE FEE IS LEVIED AS CONTEMPLATED U/S 234E OF THE ACT AND THE A.O. WHILE PROCESSING THE STATEMENTS OF TDS SHALL MAKE THE ADJUSTMENT ON THIS ACCOUNT. THUS, SO FAR AS THE NATURE OF LEVY U/S 234E OF THE ACT IS CONCERNED, IT IS MANDATORY IN NATURE AND THE A.O. HAS NO DISCRETION TO TAKE ITS OWN DECISION BUT HE HAS TO MAKE THE ADJUSTMENT ON ACCOUNT OF LEVY OF LATE FEE AS PROVIDED U/S 234E OF THE ACT IN CASE THERE IS A DELAY IN SUBMITTING THE TDS STATEMENT. THE LEVY HAS TO BE COMPUTED IN ACCORDANCE WITH THE RATE PRESCRIBED U/S 234E OF THE ACT. 7. AS FAR AS MERIT OF THE APPEAL IS CONCERNED, WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THIS APPEAL AS THE DELAY IN FILING THE QUARTERLY STATEMENT IS ACCEPTED BY THE ASSESSEE. THE ONLY PLEA RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) AS WELL AS BEFORE US IS THE EXPLANATION FOR SUCH DELAY IN FILING QUARTERLY STATEMENT. HOWEVER, SINCE THE LEVY OF LATE FEE AS PRESCRIBED U/S 234E OF THE ACT IS MANDATORY AND CONSEQUENTIAL, THEREFORE, THE SAME CANNOT BE DELETED ON THE GROUND OF REASONABLE CAUSE AS EXPLAINED BY THE ASSESSEE. IT IS PERTINENT TO MENTION THAT THOUGH THE INTIMATION ISSUED U/S 200A OF THE ACT IS AN APPEALABLE ORDER, HOWEVER, THE SAID ORDER CAN BE CHALLENGED ONLY ON THE GROUND THAT THE ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 12 ADJUSTMENT MADE BY THE A.O. OR INTIMATION ISSUED U/S 200A OF THE ACT IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OR SECTION 200A OF THE ACT. ONLY IF THE A.O. HAS FAILED TO COMPLY WITH THE MANDATORY PROVISIONS OF THESE SECTIONS WHILE MAKING THE ADJUSTMENT AND ISSUING THE INTIMATION, THE SAME CAN BE CHALLENGED IN THE APPEAL. IN ABSENCE OF ANY SUCH ALLEGATION THAT THE A.O. HAS VIOLATED ANY OF THE PROVISIONS OF SECTION 234E OR SECTION 200A OF THE ACT, THE ADJUSTMENT MADE BY THE A.O. ON ACCOUNT OF LATE FILING FEE U/S 234E OF THE ACT CANNOT BE DELETED. HENCE, WE UPHOLD THE ORDERS OF THE LOWER AUTHORITIES. THUS, THE TRIBUNAL HAVE TAKEN A VIEW THAT AFTER THE AMENDMENT W.E.F. 01/06/2015 IN SECTION 200A OF THE ACT, THE A.O. IS EMPOWERED TO MAKE ADJUSTMENT ON ACCOUNT OF FEE, IF ANY, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 234E OF THE ACT. ONCE THERE IS A DEFAULT ON THE PART OF THE ASSESSEE IN SUBMITTING THE QUARTERLY TDS STATEMENT, THE PROVISIONS OF SECTION 234E OF THE ACT ARE ATTRACTED AND THEREFORE, WHILE PROCESSING THE QUARTERLY TDS STATEMENT, THE A.O. IS BOUND TO MAKE THE ADJUSTMENT ON ACCOUNT OF LATE FEE AS PROVIDED U/S 234E OF THE ACT. THE LEVY OF LATE FEE PRESCRIBED U/S 234E OF THE ACT IS MANDATORY AND CONSEQUENTIAL IN NATURE, THEREFORE, THE SAME CANNOT BE DELETED ON THE GROUND OF REASONABLE CAUSE AS EXPLAINED BY THE ASSESSEE. THE ORDER OF THE A.O. CAN BE CHALLENGED ONLY IF THE A.O. HAS FAILED TO COMPLY WITH THE MANDATORY PROVISIONS OF SECTION 200A R.W.S. 234E OF THE ACT WHILE MAKING ADJUSTMENT AND ISSUING THE INTIMATION. IN ABSENCE OF ANY SUCH ALLEGATION BY THE ASSESSEE THAT THE ITA 96/JP/2019_ CHILD DEVELOPMENT PROJECT OFFICE VS ACIT, CPC-TDS 13 A.O. HAS VIOLATED ANY OF THE PROVISIONS OF SECTION 200A AS WELL AS SECTION 234E OF THE ACT, THE ADJUSTMENT MADE BY THE A.O. ON ACCOUNT OF LATE FEE U/S 234E OF THE ACT CANNOT BE DELETED. ACCORDINGLY, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) AND WE UPHOLD THE SAME. 8. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST, 2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19/08/2020 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- CHILD DEVELOPMENT PROJECT OFFICE- SHRINAGAR, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CPC-TDS, GAZIABAD. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 96/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR