By TIOL News Service

JAIPUR, APRIL 26, 2019: THE issue is - Whether AO can assume jurisdiction to levy late fee u/s 234E for delayed filing of TDS return, only upon processing of return and issuance of intimation u/s 200A. YES is the answer.

Facts of the case

The assessee company filed its TDS return in Form No. 24Q for the fourth quarter of A.Y 2014-15 belatedly on Sep 12, 2015. Thereafter, the return came to be processed and an intimation came to be issued u/s 200A imposing a penalty of Rs. 10,000/- u/s 234E for the delay in filing TDS return. On appeal, the CIT(A) has confirmed the said levy observing from the intimation issued u/s 200A that the TDS statement for the 4th quarter was processed on Sep 18, 2015 and therefore the adjustment made u/s 200(A)(1)(c) in respect of the fee levied u/s 234E was valid.

On appeal, the Tribunal held that,

Whether AO can assume jurisdiction to levy late fee u/s 234E but only upon processing of return and issuance of intimation u/s 200A - YES: ITAT

++ in the present case, both the filing of return by assessee and processing thereof has happened much after the date of assumption of jurisdiction by the AO u/s 200A(1)(C) to levy fees u/s 234E. Even though the quarterly return pertains to quarter ended Mar 31, 2015, the fact remains that there is a continuing default even after June 01, 2015 and the return was actually filed on Sep 12, 2015. The said provisions cannot be read to say that where there is a delay on his part to file the return, he will suffer the levy of fees, however, an assessee who has delayed the filing of return even pertaining to the period prior to June 01, 2015, he can be absolved from such levy even though there is a continuous default on his part;

++ in the opinion of this Tribunal, the AO has acquired the jurisdiction to levy the fees as on June 01, 2015 and therefore, any return filed and processed after that date will fall within his jurisdiction where on occurrence of any default on part of the assessee, he can levy fee so mandated u/s 234E. Therefore, irrespective of the period to which the quarterly return pertains, where the return is filed, the AO can levy fee u/s 234E. At the same time, in terms of determining the period for which fees can be levied, only saving could be that for the period of delay falling prior to June 01, 2015, there could not be any levy of fees as the assumption of jurisdiction to levy such fees have been held by the Courts to be prospective in nature. In light of same, the levy of fees u/s 234E is upheld for the period June 01, 2015 to the date of actual filing of the TDS return and the balance fee so levied is hereby deleted.

(See 2019-TIOL-842-ITAT-JAIPUR)