IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G , NEW DELHI Before Sh. Amit Shukla, Judicial Member Dr. B. R. R. Kumar, Accountant Member ITA No. 2308/Del/2017 : Asstt. Year : 2015-16 ITA No. 2309/Del/2017 : Asstt. Year : 2015-16 ITA No. 2310/Del/2017 : Asstt. Year : 2015-16 Vkare Bio Sciences Pvt. Ltd., V Deputy Commissioner of Income C/o L.K. Arora & Co. (Tax s Tax (CPC-TDS), Advocate), E-36/305, 3rd Floor, Ghaziabad Jawahar Park, Vikas Marg, Laxmi Nagar, Delhi-110092 (APPELLANT) (RESPONDENT) PAN No. AAECV1010E Assessee by : None Revenue by : Sh. N. K. Bansal, Sr. DR Date of Hearing: 28.08.2019 Date of Pronouncement: 30.08.2019 ORDER Per Bench: aforesaid appeals have been filed by assessee against order of Ld. CIT(Appeals) -41 New Delhi dated 23.01.2017 on issue of section 200A of Act, levy of late filing fees /penalty u/s 234E of Act for assessment year 2015-16 for all quarters of financial year 2014-15. 2. None appeared on behalf of assessee. 3. facts in brief are that in order passed u/s 200A of Act, late filing fee of Rs. 3,000/- u/s 234E of Act has been levied. It was submitted that levy of fee u/s 234E of Act can be levied only 2 ITA Nos. 2308 to 2310/Del/2017 Vkare Bio Sciences Pvt. Ltd. when there is enabling provision prescribed u/s 200A of Act, which has come w.e.f. 1st June , 2015. However Ld. CIT(A) after referring to judgment of Hon ble Bombay High Court in case of Rashmikant Kundalia vs. Union of India and decided issue against assessee. 4. Before us Ld. DR has relied upon judgment of Hon ble Delhi High Court in case of Biswajit Das vs Union of India 413 ITR 92 and also judgment of Hon ble Bombay High Court in case of Mr. Rashmikant Kundalia vs Union of India and Writ petition No. 771 of 2014 and submitted that levy of fee u/s 234E of Act is automatic wherever there is delay in view of statement of tax at source. 5. After considering impugned orders we find delay in filing of statement in regard third quarter for financial year 2014-15. demand has been raised by department u/s 200 of Act in terms of failure to comply with section 200A of Act which deals with processing of statement of tax deducted at source u/s 200 of Act. First of all, sub section 3 of section 200 of Act provides that person deducting any sum in accordance with provision of chapter XVII shall after paying tax deducted to credit of Central Government within prescribed time and prepare such statement for such period as may be prescribed. Provision of section 200A of Act provides that where statement of tax deduction at source has been made by person deducting any sum u/s 200 of Act, then such statement shall be processed in manner given therein. Clause (c) of section 200A of Act has been substituted by Finance Act 2015 w.e.f. 1.6.2015 which reads as under:- 3 ITA Nos. 2308 to 2310/Del/2017 Vkare Bio Sciences Pvt. Ltd. "(c)the fee, if any, shall be computed in accordance with provisions of section 234E;" 6. Fee for default u/ s 234E of Act provides that, when person fails to deliver or cause to be delivered statement within time prescribed u/s 200(3) of Act, then that person shall be liable to pay fee in manner provided therein. Thus, fee u/s 234E of Act is leviable if statement is not filed as prescribed u/s 200(3) of Act which in turn provides that statement to be filed after payment of tax to prescribed authority. relevant rule 31A (4A) provides that for filing of 'challan cum statement' within seven days from date of deduction. Now here in this case demand has been raised purely on ground that statement has not been furnished for tax deduction at source. relevant provision of section 200(3) read with rule 31A (4A) only refers to filing of 'challan cum statement' after tax has been paid. word "challan" in said rule indicates that tax must stand paid and that is how form 26QB is generated. Thus, here in this case, it cannot be held that there is any violation of section 200(3). In any case, levy of fee u/s 200A of Act in accordance with provision of section 234E has come into statute w.e.f. 1.6.2015. Since challan and statement has been filed much prior to this date, therefore, no such tax can be levied u/s 200A. This has been clarified and held by Hon'ble Karnataka High Court in case of Fatheraj Singhvi & Ors vs. Union of India reported in (2016) 289 CTR 0602, wherein Court made following observations :- 14. We may now deal with contentions raised by learned counsel for appellants. first contention for assailing legality and validity of intimation under Section 200A was that, provision of Section 200A(1)(c), (d) and (f) have come into force only with effect from 1.6.2015 and hence, there was no authority or competence or jurisdiction on part of concerned Officer or 4 ITA Nos. 2308 to 2310/Del/2017 Vkare Bio Sciences Pvt. Ltd. Department to compute and determine fee under Section 234E in respect of assessment year of earlier period and return filed for said respective assessment years namely all assessment years and returns prior to 1.6.2015. It was submitted that, when no express authority was conferred by statute under Section 200A prior to 1.6.2015 for computation of any fee under Section 234E nor determination thereof, demand or intimation for previous period or previous year prior to 1.6.2015 could not have been made." 7. judgment relied upon by Ld. DR relate to constitutional validity and vires of provision of section 234E. Nowhere in judgments Hon'ble Courts have held that fees u/s 200A read with section 234E shall be levied prior to 1.06.2015, because prior to this date has not prescribed levy of fees u/s 200A. Thus, we hold that no fee was leviable to assessee u/ s 234E in violation of section 200(3), because assessee had furnished statement immediately after depositing all tax without any delay. Accordingly, demand on account of 234E is cancelled. Accordingly, appeal of assessee is allowed. 8. In result, appeals of assessee are allowed. (Order Pron ounced i n Open Court on 30/08/2019). Sd/- Sd/- (Amit Shukla) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 30/08/2019 *Subodh* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR Vkare Bio Sciences Pvt. Ltd. v. Deputy Commissioner of Income-tax (CPC-TDS), Ghaziabad