IN INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T. S. KAPOOR, ACCOUNTANT MEMBER ITA No.378(Asr)/2015 Assessment year: 2012-13 PAN :AMRKI1015E Sh. Kaur Chand Jain, vs. Deputy Commissioner of Income Tax, M/s. Jain Traders, CPC (TDS), Ghaziabad. Raman Mandi, Bathinda (Appellant) (Respondent) ITA No.379(Asr)/2015 Assessment year: 2013-14 PAN :AMRSI6985D Sh. Sartaj Singh, vs. Deputy Commissioner of Income Tax, 22457C, Shant Nagar, CPC (TDS), Ghaziabad. Near Gurbax Nagar Singh Advocate, Bathinda (Appellant) (Respondent) Appellants by : Written Submissions Respondent: Sh. Rahul Dhawan, DR Date of hearing : 03/08/2016 Date of pronouncement: 15/09/2016 ORDER 2 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 PER A.D. JAIN, JM: These are two appeals of different assesses for assessment years 2012-13 & 2013-14 against separate orders, dated 15.05.2015 & 28.05.2015, passed by ld. CIT(A), Bathinda. As issue involved in both appeals is common, they are being disposed of by this composite order for sake of convenience. 2. assessee, in ITA No.378(Asr)/2015, for assessment year 2012-13 has raised following grounds of appeal which are common in other appeal: 1. That ld. CIT(A), Bathinda has erred in confirming processing fee charged u/s 200A read with section 234E before 1.6.15. 2. That ld. CIT(A), Bathinda has erred in law in dismissing ground of appellant as section 200A does not permit DCIT Ghaziabad for charging processing fee. 3. That case of appellant has been settled in case of Sibia Health Care Private Ltd. vide appeal no. 90 dated 9.6.15. 4. That appellant has right to add or delete any ground or grounds of appeal at time of hearing. 5. That proceeding fee charged may be deleted. 3. Vide intimation dated 27.04.2014, issued under section 154 of I.T.Act, 1961, late filing fee of Rs.12,000/- was imposed under section 234E of Act on assessee by TDS (CPC), TDS Form no.26Q, for 4th quarter of financial year 2012-13, which was filed on 04.09.2013. 3 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 4. By virtue of impugned order, ld. CIT(A) dismissed assessee s appeal, holding that in appellate proceedings before him, it had been contended that provisions of section 200A of Act do not permit charging of fee under section 234E and that provisions of section 234E(3) of Act require that late filing fee be paid before filing statement mandated by section 200(3) of Act; that since in present case, statement was accepted without late filing fee, same cannot be charged ex-post facto; that Finance Act, 2015 has proposed amendment in section 200A incorporating provisions of section 234E only w.e.f. 01.06.2015; that on this basis it was argued that proposed amendment in Act makes it clear that there was no provision to demand late filing fee under section 234E of Act before amendment of section 200A; that it was, thus, argued that late filing fee of Rs.12,000/- levied on assessee be deleted; that section 234E has been introduced in Act w.e.f. 01.07.2012, which exclusively applies to TDS statements delivered on or after Ist day of July, 2012; that this levy is procedural and ipso facto in nature being exigible @ Rs.200/- per day during which, default of non- furnishing of TDS statement within stipulated period/time; that, however, statute does not recognized any remission in said fee for whatever reasons except for CBDT to order relaxation in rigours of provisions of section 234E of Act, w.e.f. 01.10.2014, in exercise of its power u/s 119(2)(a) of Act; that this was so done by 4 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 Board as conveyed vide Circular No.7/2014 dated 04.03.2014, extending time limit of furnishing TDS statements of financial year 2012-13 (quarters 2nd to 4th) and for financial year 2013-14 (quarters Ist to 3rd) for Government Deductor till 31.03.2014; that accordingly, afore-mentioned relaxation is inapplicable to assessee, which is not Government Deductor; that whereas it is true that section 234E has been proposed to be incorporated in section 200A by Finance Act, 2015, w.e.f. 01.06.2015, it cannot be said that impugned intimation issued by CPC, Ghaziabad contained Late Filing Fee , as adjustment pursuant to processing of TDS statement; that on contrary, such fee has been mentioned in intimation which also serves as notice of demand for said amount; that it is apparent that intimation under section 200A to Act has been used by CPC for communicating automatic and compensatory fee payable u/s 234E by deductor assessee; that same cannot be read as adjustment u/s 200A of Act; that charge of fee u/s 234E stands on separate footing and has been reckoned not with reference to contents of TDS statement but with date of filing of said statement; that therefore, charge of late filing is separate and not adjustment u/s 200A of Act; that it is considered that if stationery of intimation has been used by CPC to expeditiously communicate automatic charge of late fee to deductor; that this proposition is strengthened by trite law that if 5 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 power is explicitly conferred by statute, its exercise is not vitiated merely because wrong section or rule or form has been referred to; that sub- section (3) of section 234E mandates that late filing fee should be paid before delivering TDS statement and this has been taken as ground by assessee to deny very ex-post facto; that this argument does not assist reasoning convassed by assessee in as much as non-acceptance of TDS statement by CPC in absence of late filing fee under section 234E would only have enhanced amount of levy as it is reckoned on daily basis till default continues; that ex-post facto levy only effectuates provisions of section 234E of Act and in no manner defeats charge itself; that assessee has further convassed interim order in writ petition by hon ble High Court of Karnataka, in W.P. No.6918-6938/2014 (T-IT); that in said petition, petitioners have questioned constitutional validity of provisions of section 234E of Act; that it was held that pending consideration of writ petition, it was desirable that enforcement of notices under said section issued by CPC, Ghaziabad be stayed until further orders; that similar orders of Hon ble High Court of Rajasthan, Jodhpur in C.W.P. No. 1981 of 2014 and of Hon ble Bombay High Court in W.P. No.771 of 2014 have been cited; that these interlocutory orders having been considered, no embargo can be read in same so as to be impediment in disposal of appeal, for reasons that ld CIT(A) was not 6 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 authority for enforcement of notices under section 234E of Act. ld. CIT(A), thus, held that there was no cause for interference in levy under question. 5. Aggrieved, assessee is in further appeal before us. 6. None appeared on behalf of assessee. However, assessee has filed written submissions, stating, that matter is covered in its favour by Sibia Healthcare Pvt. Limited. Vs. DCIT , 171 TTJ (Asr)(145); 121 DTR 81 (Asr) (Tribunal). 7. ld. DR, on other hand, has contended that whereas in case of Sibia Healthcare Pvt. Ltd (supra), TDS statement was filed on 19.02.2014 and intimation levying fee was dated 11.01.2014, in present case, statement was filed on 04.09.2013 and intimation is dated 27.04.2014. 8. We have perused written submissions and have heard ld. DR. We have also examined record carefully. In Sibia Healthcare Private Limited (supra), it has been held that prior to 01.06.2015, there was no enabling provision in section 200A of Act for raising demand in respect of levy of fee under section 234E; that at relevant point of time, limited mandate of section 200A permitted computation of amount recoverable from or payable to, tax deductor after making following adjustments: 7 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 (a) after making adjustment on account arithmetical error and incorrect claim, apparent from any information in statement - Section 200A(1)(a) (i)(ii). (b) after making adjustment for interest if any computed on basis of sums deductible as computed in statement . Section 200A(1)(b) Tribunal further observed that no other adjustments in amount refundable to or recoverable from, that tax deductor, were permissible, in accordance with law, as it existed at that point of time i.e., before amendment of section 200A of Act w.e.f. 01.06.2015; that thus, in absence of enabling provision under section 200A, no such levy could be effected in course of any intimation thereunder; that as intimation under section 200A, raising demand or directing refund to tax deductor, can only be passed within one year from end of financial year within which related TDS statement is filed, and related TDS statement was, in that case, filed on 19.02.2014, such levy could only have been made at best within 31.03.2015; that that time it had elapsed and defect was thus not curable even at that stage; that impugned levy of fee under section 234E was, thus, unsustainable in law. Tribunal, on following basis, upheld and deleted levy of fee under section 234E of Act. 8 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 That prior to 01.06.2015, there was no enabling provision of section 200A of Act have raised. 9. facts in present case, are entirely pari materia with those in Sibia Healthcare Pvt. Ltd. (supra), therefore, respectfully following decision of Sibia Healthcare Pvt. Ltd. (supra), we hold that in present case also, impugned levy of fee is not sustainable in law. 9. Apropos contention of Department that whereas in Sibia Healthcare Pvt. Ltd. (supra), TDS statement was filed on 19.02.2014 and intimation levying fee was issued on 11.01.2014, in present case, statement was filed on 4.9.2013 and intimation is dated 27.04.2014, this does not make any difference at all. financial year in which statement was filed remains same in both years. In Sibia Healthcare Pvt. Ltd (supra), as well as in present case, such financial year is F.Y. 2013-14. As such, like in Sibia Healthcare Pvt. Ltd , (supra), here too, levy could have at best been made upto 31.03.2015 only. 10. For above discussion, grievance of assessee is accepted and levy of fee is deleted. 11. In result, appeal of assessee is allowed. 12. Now we take up ITA No.379(Asr)/2015 for A.Y. 2013-14, in case of Sartaj Singh, Bathinda. facts in this appeal are exactly same, as those in case of Kaur Chand Jain, Bathinda, in ITA No.378(Asr)/2015, decided by us, hereinabove. Therefore, our 9 ITA Nos. 378 & 379(Asr)/2015 AYs. 2013-14 & 2014-15 observations in case of Kaur Chand Jain (supra) are squarely applicable, mutatis mutandis, to this appeal. In view of those observations, appeal of assessee is allowed. 13. In result, both appeals are allowed. Order pronounced in open court on 15/09/2016. Sd/- Sd/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ Dated: 15/09/2016 Copy of order forwarded to: 1. Assessees:1) Sh. Kaur Chand Jain, Raman Mandi Bathinda. (2) Sh. Sartaj Singh, Shant Nagar, Bathinda. 2. DCIT, Ghaziabad. 3. CIT(A), Bathinda. 4. CIT, Bathinda. 5. SR DR, ITAT, Amritsar. True copy By order Income Tax Appellate Tribunal, Amritsar Bench: Amritsar. Kaur Chand Jain v. Deputy Commissioner of Income-tax, CPC (TDS), Ghaziabad