late fees under section 234E

[stoshniwal]

assessee had deposited tds of rs 10000 under section 194H for mar 15 on 31/3/15  and also wrongly paid same amt ie rs 10000 as late filing fees under section 234E. now can assessee claim refund of that amount paid under section 234E ie rs 10000 or is there any procedure for adjusting this amount against tds under any other section & in account of any other assessee.

Saurabh Toshniwal

[pawansingla]

I.T.A. No.90 /Asr/2015
Assessment year 2013-14
Page 1 of 7
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH, AMRITSAR
[Coram: Pramod Kumar AM and A.D. Jain JM]
I.T.A. No.90/Asr /2015
Assessment year: 2013-14
Sibia Healthcare Private Limited ..........................Appellant
St No. 8, Ajit Road, Bhatinda 151 001
[TAN: PTLS15043A]
Vs.
Dy. Commissioner of Income-tax (TDS), ............................Respondent
Centralized Processing Cell, Ghaziabad
Appearances by:
Ashwani Kalia for the appellant
Tarsem Lal for the respondent
Date of concluding the hearing : June 09, 2015
Date of pronouncing the order : June 09, 2015
O R D E R
Per Pramod Kumar:
1. By way of this appeal, the assessee has called into question correctness of
the order dated 13th October 2014 passed by the learned CIT(A) upholding levy of
fees, under section 234 E of the Income Tax Act, 1961, on the assessee and by way
of intimation dated 11th January 2014 issued under section 200A in respect of
processing of TDS statements the third quarter of the financial year 2012-13. The
appeal is time barred by 62 days but the assessee has filed a petition seeking
condonation of this delay. Having perused the condonation petition and having rival
contentions on the same, we are inclined to condone the delay and proceed to take
up the matter on merits. Delay condoned.

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 19th February 2014, such a levy could only have
been made at best within 31st 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
I.T.A. No.90 /Asr/2015
Assessment year 2013-14
Page 7 of 7
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.
11. In the result, the appeal is allowed. Pronounced in the open court on 9th day
of June, 2015.

[camanojgupta]

section 200A which provides for processing of TDS statement itself provides for refund of excess amount.