By C. N. Vaze
Shailesh Kamdar
Jagdish T. Punja bi
Bhadresh Doshi Chartered Accountants
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Sections 200A, 234E – Prior to 1.6.2015 there was no enabling
provision for raising a demand in respect of levy of fees u/s. 234E.
Facts:
The
assessee company delayed the filing of TDS statements. In the course of
processing of TDS statements, the AO(TDS) raised a demand, by way of an
intimation dated 9th September, 2013 issued u/s. 200A of the Act, for
levy of fees u/s. 234E for delayed filing of the TDS statement.
Aggrieved
by the levy of fees in the intimation issued, the assessee preferred an
appeal to the CIT(A). The CIT(A) upheld the action of the AO.
Aggrieved, the assessee preferred an appeal to the Tribunal.
Held:
The
Tribunal noted the statutory provisions of section 234E as introduced
by the Finance Act, 2012 w.e.f. 1.7.2012 and also of section 200A as
inserted by the Finance Act, 2009 w.e.f. 1.4.2010. It also noted that
the provisions of section 200A were amended by Finance Act, 2015 w.e.f.
1.6.2015 to provide that in the course of processing of a TDS statement
and issuance of intimation u/s. 200A in respect thereof an adjustment
could also be made in respect of the “fee, if any, shall be computed in
accordance with the provisions of section 234E.”
The Tribunal
held that there was no enabling provision for raising a demand in
respect of levy of fees u/s. 234E. While examining the correctness of
intimation u/s. 200A, it had to be guided by the limited mandate of
section 200A, which, at the relevant point of time, permitted
computation of amount recoverable from or payable to, the tax deductor
after making adjustments specified therein which did not include fees
levied u/s. 234E.
The adjustment in respect of levy of fees u/s.
234E was beyond the scope of permissible adjustments contemplated u/s.
200A. This intimation is appealable order u/s. 246A(a), and, therefore,
the CIT(A) ought to have examined legality of the adjustment made under
this intimation in the light of the scope of section 200A. It also
observed that there is no other provision enabling a demand in respect
of this levy and in the absence of the enabling provisions u/s. 200A, no
such levy could be effected.
The appeal filed by the assessee was allowed.
