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in a l l the appeals are against charging o f la te fees under sect ion 234E of the Act . The assessee contended before ld. CIT(Appeals ) that the int imat ion was passed without prov id ing any opportuni ty of being heard because the tax was depos ited in t ime and la te f i l ing was only on technica l error result ing in no loss to the revenue and fee can be recovered only at the t ime of f i l ing re turn. I t was a lso submitted that the impugned returns were la te due to Accountant 's faul t . I t was also contended that fees under sect ion 234E can be recovered at the t ime of f i l ing of the return and not therea fter . 4 . The ld. CIT(Appeals ) , cons ider ing the submissions o f the assessee noted that in a l l the int imations under sect ion 200A o f the Act , late fees under sect ion 234E o f the Act has been charged. A deductor is a l lowed to f i l e the TDS Statement beyond the prescr ibed t ime provided he pays the fees as prescr ibed under sect ion 234E o f the Act . In other words , late f i l ing o f the TDS statement is regular ized upon payment o f the fee as set out in Sect ion 234E. The late fee under sect ion 234E is to be mandator i ly l ev ied and so the same cannot be waived. The ld. CIT(Appeals ) re jected the content ion o f the assessee that s ince there was no loss o f revenue, no fees can be lev ied. I t could be recovered only at the t ime o f f i l ing o f the return. The ld. CIT(Appeals ) , according ly , d ismissed al l the appeals of the assessee .

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5. The ld. counsel for the assessee re i terated the submissions made be fore author i t ies be low and submit ted that in a l l the cases, the int imat ion was issued under sect ion 200A of the Act whereby the la te f i l ing fee under sect ion 234E has been lev ied. He has submit ted that Sect ion 200A(1 ) (c ) was subst i tuted by F inance Act , 2015 w.e . f . 01.06.2015 whereby the prov is ion was made which reads as under :

"C- The f ee , i f any, shal l be computed in accordance with the prov is ions of Sec t ion 234E."

6. The ld. counsel for the assessee submit ted that s ince there were no prov is ions for l evy of the fees under sect ion 200A, i t was la ter on inser ted in Sect ion 200A(1 ) (c ) w.e. f . 01.06.2015 and the cases o f the assessee per ta in to the pr ior per iod be fore 01.06.2015, therefore, no fee can be lev ied under sect ion 234E o f the Act . He has submit ted that the issue is covered in favour o f the assessee by order o f ITAT Amri tsar Bench in the case o f S ib ia Healthcare Pr ivate Ltd. V DCIT (TDS) in ITA 90/2015 v ide order dated 09.06.2015 in which in paras 4 to 10, ident ica l i ssue has been decided in favour of the assessee . The order o f the Tr ibunal is reproduced as under :

"4. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. In addition to his argument on the merits, learned counsel has also invited our attention to the reports about the decisions of various Hon'ble High Courts, including Hon'ble

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Kerala High Court, in the case of Narath Mapila LP School Vs Union of India [WP (C) 31498/2013(J)] , Hon'ble Karanataka High Court in the case of Adithya Bizor P Solutions Vs Union of India [WP No. 6918-6938/2014(T-IT), Hon'ble Rajasthan High Court in the case of Om Prakash Dhoot Vs Union of India [WP No. 1981 of 2014] and of Hon'ble Bombay High Court in the case of Rashmikant Kundalia Vs Union of india [WP No. 771 of 2014], granting stay on the demands raised in respect of fees under section 234E. The full text of these decisions were not produced before us. However, as admittedly there are no orders from the Hon'ble Courts above retraining us from our adjudication on merits in respect of the issues in this appeal, and as, in our humble understanding, this appeal requires adjudication on a very short legal issue, within a narrow compass of material facts, we are proceeding to dispose of this appeal on merits.

5. We may produce, for ready reference, section 234E of the Act, which was inserted by the Finance Act 2012 and was brought into effect from 1^st July 2012. This statutory provision is as follows:

234E. Fee for defaults in furnishing statements (1)Without prejudice to the provisions of the Act, where a person fails to deliver or cause to be delivered a statement within the time prescribed in sub-section (3) of section 200 or the proviso to sub section (3) of section 206C, he shall be liable to pay, by way of fee, a sum of two hundred rupees for every day during which the failure continues.

(2)The amount of fee referred to in sub-section (1) shall not exceed the

amount of tax deductible or collectible, as the case may be. (3)The amount of fee referred to in sub-section (1) shall be paid before

delivering or causing to be delivered a statement in accordance with sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C.

(4)The provisions of this section shall apply to a statement referred to in sub-section (3) of section 200 or the proviso to sub-section (3) of section 206C which is to be delivered or caused to be delivered for tax

deducted at source or tax collected at source, as the case may be, on or

after the 1st day of July, 2012

6. We may also reproduce the Section 200A which was inserted by the Finance Act 2009 with effect from 1^st April 2010. This statutory provision, as it stood at the relevant point of time, was as follows:

200A: Processing of statements of tax deducted at source

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(1) Where a statement of tax deduction at source, 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 making the following adjustments, namely:—

(i) any arithmetical error 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;

(c) the sum payable by, or the amount of refund due to, the deductor shall be determined after adjustment of amount computed under clause

(d) against any amount paid under section 200 and section 201, and any amount paid otherwise by way of tax or interest;

(d) 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 (c); and

(e) the amount of refund due to the deductor in pursuance of the determination under clause (c) 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—

(1) of an item, which is inconsistent with another entry of the same or some other 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;

(2) For the purposes of processing of statements under sub- section (1), the Board may make a scheme 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.

7. By way of Finance Act 2015, and with effect from 1^st June 2015, there is an amendment in Section 200A and this amendment, as stated in the Finance Act 2015, is as follows:

In section 200A of the Income-tax Act, in sub- section (1), for clauses (c) to (e), the following clauses shall be substituted with effect from the 1st day of June, 2015, namely:—

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"(c) the fee, if any, shall be computed in accordance with the provisions of section 234E;

(d) the sum payable by, or the amount of refund due to, the deductor shall be 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 deductor in pursuance of the determination under clause (d) shall be granted to the deductor.

8. In effect thus, post 1^st June 2015, in the course of processing of a IDS statement and issuance of intimation under section 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". There is no dispute that what is impugned in appeal before us is the intimation under section 200A of the Act, as stated in so many words in the impugned intimation itself, and, as the law stood, prior to 1^st June 2015, there was no enabling provision therein for raising a demand in respect of levy of fees under section 234E. While examining the correctness of the intimation under section 200A, we have 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 the following adjustments:

(a), after making adjustment on account of "arithmetical errors" and "incorrect claims apparent from any information in he statement"

- Section 200A(1)(a) (b). after making adjustment for 'interest, if any, computed on the basis of sums deductible as computed in the statement".

- Section 200A(1)(b)

9. No other adjustments in the amount refundable to, or recoverable from, the tax deductor, were permissible in accordance with the law as it existed at that point of time.

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10. In view of the above discussions, in our considered view, the adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A. This intimation is an appealable order under section 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 the section 200A. Learned CIT(A) has 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 effected in the course of intimation under section 200A. The answer is clearly 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 absence 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 financial 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 made 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 bearing in mind entirety of the case, the impugned levy of fees under section 234 E 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 gets the relief accordingly."

7 . On the other hand, ld. DR opposed the submissions o f ld . counse l for the assessee and re l ied upon orders o f the author i t ies be low. He has re l i ed upon dec is ion o f Bombay High Court in the case Rashmikant Kundal ia Vs Union of India dated 06.02.2015 in Writ Pet i t ion No. 771/2014 and decis ion of Rajasthan High Court in the

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case of M/s Dundlod Shikshan Sansthan Vs UOI dated 28.07.2015 in wr i t pet i t ion No. 8672/2014. 8 . We have cons idered r iva l submiss ions and mater ia l avai lable on record. Sect ion 234E prov ides fees for de faul t ing in furnishing s tatements . Sect ion 200A o f the Income Tax Act provides prov is ions for process ing o f s tatements of tax deducted at source . Sub Sect ion (c ) o f Sect ion 200A(1 ) was subst i tuted w.e . f . 01.06.2015 and from 01.06.2015, the same reads as under :

"C- The f ee, i f any, shal l be computed in accordance with the prov is ions of Sec t ion 234E of the Income Tax Ac t . "

9. The ident ical i ssue was considered by ITAT Amri tsar Bench in the case of Sibia Healthcare Pvt . L td . ( supra ) and the issue has been dec ided in favour o f the assessee . In the case of the assessee, the fee under sect ion 234E o f the Act has been lev ied for assessment years pr ior to the amendment in sub c lause (c ) o f Sect ion 200A(1 ) o f the Act i .e . pr ior to 01.06.2015. There fore , i ssue is covered in favour o f the assessee by order of ITAT Amritsar Bench in the case o f Sibia Healthcare Pvt . L td. (supra ) .

9 ( i ) Ident ica l issue was also cons idered by ITAT Chandigarh Bench in the case o f the Punjab State Cooperat ive Bank Employees Pens ion Fund Trust Vs DCIT in ITA 728-730/2015 for assessment year 2014-15 and

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v ide order dated 28.10.2015, the appeals o f the assessee are a l lowed. The f ind ings o f the Tr ibunal in paras 8 to 11 o f the above order are reproduced as under :

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 follows:

" 200A. (1) Where a statement of tax deduction at source 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 making the following adjustments, namely:-

(i) any arithmetical error 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;"

A bare perusal of the reading of Section 200A makes it clear that while processing TDS statements under section 200A the only adjustments which could be made were on account of any arithmetical error in the statement or any incorrect claim apparent from any information in the statement or the levy of any interest on TDS. No other adjustment could be made while processing the TDS statements under section 200A. The levy of fee under section 234E, in the impugned case was clearly therefore beyond the powers 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 effect from 01/06/2015 , the power to levy fees under section 234E has been specifically 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, wherein the levy of fee under section 234E while processing TDS statements u/s 200A prior to 01/06/2015 was deleted by holding at para 10 as follows:

"10. In view of the above discussions, in our considered view, the adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A. This intimation is an appealable order under section 246A(a), and, therefore, 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) has 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 effected in the

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course of intimation under section 200A. The answer is clearly 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 absence 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 financial 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 made at best within 31^stMarch 2015. That time has already elapsed and the defect is thus not curable even at this stage. In view of these discussions, as also bearing 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 gets 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 statement 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 para 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 adjustment 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 in law."

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 234E per se. In fact with respect to the same we concur with the view of Ld. CIT(A) that 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 statements u/s 200A. The AO can pass a separate order levying such fee.

10. In view of the above discussion we are of the considered view that the AO had exceeded his jurisdiction in levying fee under section 234E while processing the statement under section 200A of the Act and therefore the intimation by the lower authority cannot be sustained in law. However, it is open to the AO to pass a separate order under section 234E 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 intimation under section 200A set aside and the fee levied is deleted.

11. In the result, all the appeals of the assessee are allowed. "

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10. The dec is ions re l i ed upon by ld . DR perta in to the issue of const i tut ional val id i ty o f Sect ion 234E of the Income Tax Act in which const i tut ional val id i ty o f th is prov is ion was upheld. The issue in the present appeal have not been cons idered in these decis ions , there fore, c lear ly d ist inguishable on facts and issue.

11. In v iew o f the above, we are of the considered v iew that Assessing Of f icer had exceeded his jur isdict ion in levying fees under sect ion 234E o f the Income Tax Act. Accord ingly, the int imation under sect ion 200A read wi th Sect ion 234E of the Income Tax Act are set as ide and the fee lev ied are deleted.

12. In the resul t , a l l the appeals o f the assessee are a l lowed.

Order pronounced in the Open Court.

Sd/- Sd/-

(ANNAPURNA MEHROTRA) (BHAVNESH SAINI )

ACCOUNTANT MEMBER JUDICIAL MEMBER

Dat ed : 29 ^th

Oc t . , 2015 . ' Poonam '

Copy t o :

The Appe l l an t , The Respondent , The C I T (A ) , The C I T ,DR Ass i s t an t Reg i s t ra r ,

I TAT/CHD