Draft appeal for notice received u/s 200A for late Fees u/s 234E for late deposit of TDS return

SHARE:

As you may aware of that Late fees 200 per day is applicable u/s 234E for late filing of TDS return . Department has issued intimation u/s 200A to assesses to deposit the Late fees of Rs 200/- per day for late filing of tds return along with other deficiency in the tds return filed.As we have earlier informed you that The constitutional validity of s. 234E has been challenged in the Kerala High Court. Vide an interim order dated 18.12.2013, the High Court has admitted the Petition and granted a stay of proceedings for a period of two months. 

CA Rajesh Mehta Ji has prepared a Draft appeal against such intimation which may be helpful for you.


Before preparing for appeal read the following points :-

Q.1 What to do if you receive an intimation U/s 200A by processing a tds statement creating a demand of late fee U/s 234E ? Is the demand of late fee appealable ?
A.1 You may file an application U/s 154 of the act for rectification of mistake to tdscpc through email id contactus@tdscpc.gov.in or u may directly file an appeal U/s 246A before your local jurisdictional Commissioner of Income Tax- Appeals. Demand of late fee is subject to rectification and also appealable because notice of demand of late fee is issued U/s 200A.

Q.2 What is the time limit to file a rectification application U/s 154 ?
A.2 Within four years from the end of the financial year in which the order U/s 200A was passed.



Q.3 What to do if the application U/s 154 is rejected by tdscpc ?
A.3 You may file an appeal U/s 246A against such rejection order within 30 days from the date of rejection.

Q.4 Can you directly file an appeal against order U/s 200A without filing a rectification application ?
A.4 Yes, you can directly file an appeal against order U/s 200A, within 30 days from the date of service of notice U/s 200A.

Q.5 What will be treated the date of service of notice U/s 200A ?
A.5 Date of upload of the order U/s 200A to your tdscpc inbox is treated as date of service of notice, and not the date of receipt of notice by post.

Q.6 How to file a direct appeal if the time limit of 30 days have expired from the date of upload of order U/s 200A ?
A. 6 First of all file a rectification application U/s 154 of the act to tdscpc, if they reject it then file an appeal against this rejection order. The time limit of 30 days start from the date of rejection of rectification application. Presently order of rectification application are being passed by tdscpc within 4 to 8 days from the date of filing application U/s 154.

Q.7 If the department can not recover late fee, so should you file tds statement in future also delayed by due date ?
A. 7 No, make it a practice to strictly file a tds statement in due date, above system of appeal etc. is only for unintentional delay.

Q.8 What is the difference between due dates of filing tds statement for Govt Deptt. and others ?
A.8 Govt. departments are allowed 15 days extra for filing a tds statement than the due dates for others, e.g. due date for Quarter 1 is 15th July for other then it is 31st July for Govt. Deptt.

Q.9 Should you use the following format for filing an appeal ?
A.9 Grounds of appeal may be kept brief and detailed grounds of appeal can be submitted at the time of hearing and change or modify the grounds of appeal as per you case.


Before the Hon’ble Commissioner of Income Tax (Appeals)-I, Indore


In the case of Govt. college

V/s
DCIT-TDS, INDORE & DCIT-CPC-TDS

A.Y. 2013-14   Qtr.2

TAN: - B P L G 0 3 4 ---

                                           STATMENTS OF FACTS

1.     That the assessee had filed his TDS Quarterly statement of Quarter 2 of F.Y. 2012-13 on 7thOct.2013 which was due to be filed on 31thOctober 2012.Therefore it was delayed  by 342 Days.
2.     That the Ld. Assessing officer (tdscpc) had imposed a late fees U/s 234E for 342 days Rs.42000/- for delay in filing of Quarterly TDS statement.
3.     That the Due date of filing of TDS Return for Q2 of F.Y. 2012-13 was 31th October 2012.
4.     That As per the provisions of Sec. 234E of the Act “if a person fails to deliver or cause to be delivered a statement within the prescribed time period  then he shall be liable to pay Late fees @ Rs.200/- per day before filing the tds statement.
5.     That the Ld assessing  officer Imposed the late fees as follows:-

TDS statement for the Quarter 
Due date of filing TDS statement
Actual date of filing TDS statement
  Delay days
Late fees U/s 234E

Q4
31th Oct 2012
07thOct2013
342Days
42000*
           *Amount of late fees @ 200per day 68400/-
            or TDS deductible i.e. 42000/-
             Whichever is lower i.e.42000/-

(6) That as per provisions of sec 201(1) of the Act also an assessee cannot be treated in default & TDS statement cannot be treated as defective
      due to non-payment of late fees U/s 234E, like non-payment of self assessment tax & interest alongwith return U/s 139(1) treats an income tax return as defective U/s 139(9) of the Act.
(7) Sec. 201(2) of the act states that if a person has failed to deposit tax and interest then it shall be a charge upon all the asset of that person, so it also does not cover late fee amount, so it is clear that the intention of the law is not to cover/recover late fee if not deposited alongwith tds statement.
   (8)  That the levy of late fees is illegal and wrong and not in accordance with   law.


Before the Hon’ble Commissioner of Income Tax (Appeals)-I, Indore

In the case of Govt. college
V/s
DCIT-TDS,INDORE & DCIT-CPC-TDS

A.Y. 2013-14

TAN :- B P L G 0 3 4  ---

                       
GROUNDS OF APPEAL

Late Fees of Rs.42000/-  imposed U/s 234E

1)    That The Ld. Assessing officer (TDSCPC) had levied a late fees of Rs.42000 /- & issued order U/s 200A of the Act.
2)    That the Sub section (3) of the section 234E of the Act states that it shall be paid before delivering a TDS statement. It means that any late fees should have been deposited just at the time of delivering TDS statement and not later than this.
3)    That once the TDS statement has been accepted without late fees, then such late fee cannot be recovered later on. In the view of the above, late fee cannot be recovered later on by way of any notice, no notice of demand U/s 156 can be issued for this.
4) That the Provisions of Sec.204 of the Act has made the person responsible for Sec. 190 to Sec. 203AA and Sec.285, this phrase does not cover Sec.234E, it means no one is responsible for default U/s 234E of the Act. It also clears that if late fees are due but not deposited along with the TDS statement none can be held responsible to deposit it later on.
5) That the sec.200A of the Act does not permit processing of TDS statement for default in payment of late fees, except any arithmetical error, or incorrect claim, or default in payment of  interest and TDS payable or refundable etc. Hence late fees for TDS quarterly statement cannot be recovered by way of processing under section 200A. Therefore no demand notice cannot be issued under this section, but if issued, then it is illegal. Hence liable to be cancelled.
6.) Recovery can be made of any amount which is legally payable, if the amount has not become legally payable, then how the recovery can be made for late fee.
7) That the basic concept behind TDS is, to deposit the Tax on the income of deductee as he earns the income. Therefore deductor/recepient has deposited the tax timely. No such offence has been committed by the assessee that he deducted the TDS & not deposited the Tax and utilizing the money for his purpose .Therefore No Late fees can be imposed on the assessee.
8) In view of the above submissions order U/s 200A of the Act imposing late fees U/s 234E has to be cancelled and quashed.
9) The appellant craves leave to add, alter or withdraw any of the grounds of appeal.

                                                      Thanking You

       Signed
                                                                                              (Appellant)

Following points can also be taken as grounds of appeal if tds statement was delayed because tds was deducted late :-
                        

1)    That the Section 200(3) of the Act says that the TDS statement shall be filed after paying the tax deducted & Rule 31A talks about filing of TDS statement where deduction is made under section 190 to section 196D .Therefore it does not impose a liability of filing a Quarterly statement in the cases where Tax was deductible but not deducted.

2) That the procedure of Filing a TDS Quarterly statement is following As per rule 31A:-
        i) Deduct the TDS when it is required to be Deducted at a proper           Rate, on proper amount in proper time.
             ii) Then deposit the TDS deducted above
            iii) After depositing TDS it is required to File a Quarterly statement on prescribed time.
                             In such case where no TDS which was deductible but  not deducted & deposited a Quarterly TDS statement cannot be filed. Therefore the imposition of late fee in such a case is illegal.
   3) That the section 200A (1) of the Act says that “Where a statement of Tax    deduction at source has been made by a person deducting any sum”. Hence it does not cover the cases of tax deductible but not deducted at all. Therefore the Section does not permit processing of TDS Quarterly statement in a case where no deduction has been made. Therefore TDS quarterly statement has to be filed for the Quarter in which TDS has been deducted & deposited and not in the quarter in which sum has been paid.

By CA RAJESH MEHTA
FCA, DISA (ICAI)
203 MANAS BHAWAN EXTN.,
11 RNT MARG, INDORE
09827036956, 09424818719
rajeshmehta_indore@yahoo.com
rajeshmehtaindore@gmail.com

Download complete Post Draft appeal for notice received u/s 200A for late Fees u/s 234E for late deposit of TDS return in PDF format.

COMMENTS

BLOGGER: 3
Loading...

$show=index

Name

. SECURITIES,4,(MNP),2,(TDS)2007-08,1,`,1,01.07.12,23,01.09.2008,1,01.10.2012,2,06.07.2009,3,07.08.2012,1,1 PERCENT EXCISE ITEMS LIST,2,1 sep,1,1% excise,2,10 year nsc,6,10(10C),1,1000 court cases judgements supplied to ITO,6,1000 rupee note,3,11-2008,1,11-2010,1,130 items,1,14.08.2008,1,15 august,2,150 Rs coin,2,15g,9,15h,10,18-12-2009,1,192(1A),5,192A,2,194 I,3,194A,4,194c from 01.10.2009,7,194H,5,194j,12,194LC,3,1981-2007,2,2% cst,1,2% excise,1,2004,1,2008,1,2008-09 FY,1,2010,2,206AA,12,234A 234B 234C,9,234c interest calculator,10,234E,14,23AC,1,23ACA,1,23B,2,24C,3,24q annexure II,4,25 paisa coin,1,271(1)(c),1,271B,2,271H,3,272B,1,27A,1,280,5,280 challan,4,281,4,282,2,283,2,29 AUGUST,2,29.04.2010.,1,29/08/2008,2,29/2008 service tax,2,2g meaning use,1,3 idiots,1,30 MARCH,4,31st March,13,32-2010,1,33 of 2009,1,35(2AA),1,35(2AB),1,3CD,15,3g meaning use,1,40(b),2,43B,4,44 AB EXEMPTED INCOME,1,44AA,1,44AB AGRICULTURE,2,44AB new limit,26,44AB NON RESIDENT,3,44ad,13,46/2012 45/2012,1,49C,1,5 day week,1,5 years post office deposit,5,5/2011,1,50 paisa coin,2,54b,19,54EC,22,54ee,1,54f,20,54gb,1,5th paycommission punjab,1,6 % excise,1,6 crore advance limit,1,6/2005,1,69/2010,1,6th cpc,5,6TH PAY COMMISSION,6,70% of pan etds,7,7th Central Pay Commission,5,8 tips to save tax,2,80C,80,80ccc,3,80CCD,12,80cce,2,80CCF,18,80CCG,6,80d,4,80DDB,11,80EE,2,80G,3,80GG,7,80GGA,5,80GGB,1,80ggc,1,80tta,2,80U,1,85% of pan etds,1,86/2008 DATED 13-08-2008,1,87A rebate,1,89(1),12,89(1) relief calculator,10,9.5 % rate for private epf,8,92E,1,95% of pan etds,5,98 dated 04/01/08,1,aadhaar,3,aakash tablet,1,aam admi,1,aar,1,Aayakar Sampark Kendra,1,abatement,13,abolished,1,ACCOUNT PAYEE DRAFT,2,Accounting,1,ACCOUNTING CODE,11,accounting code for services,6,ACCOUNTING FOR GOVT GRANTS,3,accounting standards,2,ACES,10,ADD IN,1,Add-Ins,2,additional relief in budget 2010,1,adjustment of advance FBT with advance Tax,2,advance rullings,1,advance salary,2,ADVANCE TAX CALCULATOR,10,advance tax challan,18,ADVANCE TAX CUT OFF AMOUNT,12,ADVANCE TAX DATES,18,AFFIDAVIT,2,AG Projects Technologies Ltd RT,1,age 80 addition pension,2,aibea wage revision,1,aibea wage revision latest news,1,aiboa,1,aiboc,1,aiboc wage revision,1,AIG,1,AIR,8,airline ticket booking tds,7,airlines,3,all is well,1,allowances,4,allownces,4,alphabet of inspiration,1,alteration on check allowed,3,alternate minimum tax,4,AMENDED 3CD,8,amendment in companies bill 2011,2,amendment in gratuity act 2010,5,amendment in registration service tax,4,AMENDMENT IN SERVICE TAX ON RENT,6,amendment to finance Bill 2010,1,AMNESTY SCHEME 2007,2,amt,2,Anna Hazare,2,anna hazzare bill vs govt lokpal bill,1,appeal,15,apply for new pan card against old pan card,2,aqb,1,arbitration,2,arrears of salary,4,arrears of sixth pay,6,ARRERS TAX,2,AS-12,1,ASBA,1,assessee in default,2,ASSESSMENT REOPENING,5,ASSESSMENT YEAR 2008-09 REFUND,1,atm,9,atm 100 per day,2,atm cash without card,2,atm tips,7,atm wrong debit,1,audit cases itr filing,2,audit limit enhanced,13,Audit Questionaire,1,AUDIT REPORT,40,AUS VS IND.INDIA VS SL,1,Automated teller machine,1,AUTOMATION OF CENTRAL EXCISE AND SERVICE TAX,7,ay 2010-11,1,bad debts,2,Bank,5,Bank account,13,bank audit,3,bank audit 2012,1,bank charges,14,BANK SALARY,2,bank strike 06/07/09 and 07/07/09,1,banking law amendment,1,banknotes,6,banks npa provisioning,3,BARE ACT,4,bare rules,1,BASE RATE BY BANKS,2,bcct,1,BIMAL JAIN,220,biometric pan card,2,black and white form not acceptable,2,black money,10,BLOCK PERIOD,1,blogging,1,bobay refund,1,BONUS,2,bonus share,2,book discount,5,BOOK ON EFILING,1,BOOK REVIEW,1,books of accounts,4,BOOMING INDIAN ECONOMY,3,both House rent allowance,7,both hra and house loan,15,Brass Scrap,2,BRIBE CASE,1,BROKER,2,BSE,1,bsnl broadband,1,bsnl broadband usage,1,bsnl land line sms alert,2,BSR CODES,3,BUDGET 2009,18,budget 2010,28,budget 2010-11,4,budget 2011,13,BUDGET 2012,38,budget 2013,17,BUDGET 2014,39,BUDGET 2014 CONTEST,6,budget expectations,7,BUDGET HIGHLIGHTS,11,budget live on computer,4,budget live telecast,4,budget notification,1,budget on tv,1,budget speech,12,BUDGET SPEECH DOWNLOAD,2,Budget-2014,2,Budget-2015,45,BUDGET-2016,71,BUDGET08,5,Business,4,BUSINESS AND PROFESSION MEANING,1,BUSINESS COVERED UNDER 44ab,2,BUY HOUSE,3,C FORM,5,CA CAN ONLY AUDIT MVAT,4,CA CLUB INDIA,1,CA GIRISH AHUJA,3,CA NITIN GUPTA,5,CA PARDEEP JAIN,5,CA ROHIT GUPTA,4,ca services,3,CA sudhir Halakhandi,1,CA Swapnil Munot,11,CA Vikas Khandelwal,9,calculate arrear,1,CALCULATE NEW PAY,2,calculate your emi,4,calculation of tax on salary arrears,4,CALCULATOR,53,CALCULATOR REVISED,1,capital asset,3,capital formation huf,3,Capital gain,32,capital gain account scheme 1988,9,CAPITAL GAIN INDEX,29,capital gain on repayment of loan,2,capital gain on tenancy rights,1,capital goods,2,capital revenue,1,CAPITAL SUBSIDY,3,CAR LOAN RATE INCREASE,7,carry forward of losses in late return,4,cas,1,cash flow statement,1,CASH PAYMENT DIS ALLOWANCE,3,CASH PAYMENTS EXCEEDING 20000,3,CASH SUBSIDY,2,cbdt,12,cbec,8,CBI ARRESTED,1,centeral sales tax rate,2,CENTRAL PAY COMMISSION,6,CENTRAL PROCESSING CENTER,2,CENTRALISED PROCESSING OF RETURNS,1,Cenvat,61,CENVAT Credit Rules,78,cgas 1988,3,challan,6,challan 281,10,CHALLAN 289,1,challan correction,8,challan Form 17,11,CHALLAN STATUS INQUIRY,1,change,1,change in cst rate,5,change in excise duty rates,9,CHANGE IN PAN ADDRESS,3,CHANGE IN PAN DATA,6,change in tds rates in budget,12,changes,1,CHANGES IN SERVICE TAX ACT,55,changes in new itr forms,10,CHANGES IN TDS,9,CHARGES ON CASH PAYMENT OF CREDIT CARD BILL,2,charitable organisation,3,check name from PAN,2,check tds deducted online,3,Cheque,11,cheque bounce,7,cheque payment before due date,8,cheque tender date /realisation date,4,Cheque Truncation,7,CHEQUE VALIDITY,8,child care leave,1,CHILD DEPENDENT PREMIUM,1,CHILD MARRIED PREMIUM,1,child plan,1,childeren name,1,children education allownces,7,chip based atm card,4,cibil,6,cibil for companies,3,CII 2007-08,1,CII 2008-09,2,CII 2010,1,cii 2012-13,1,CII2011-12,1,cin,2,CIRCULAR 3/2010 DT 2.03.2010,1,CIRCULAR 8-2010,1,CIT v. Emilio Ruiz Berdejo (2010) 320 ITR 190 (Bom.),1,cloning of atm card,1,clubbing of income,2,COLLECTION CHARGES,1,COLOR SCHEME,1,COMMISSION ON SMALL SAVINGS,2,common error in 2009-10,1,common error in itr 4-5-6,3,compa,1,companies bill 2012,2,COMPANIES RATE,2,COMPANY BILL 2011,6,company deposit,5,Company Law Settlement Scheme,5,COMPANY REGISTRATION,3,complusory payment of taxes,1,Composition scheme service tax,2,COMPUTER AS FAX MACHINE,1,computer sytem at ito office,1,CONCEPT PAPER,1,configure yahoo mail in outlook express,7,consolidate account statement,5,construction purchase of house,9,Consultancy Service,1,Consumer Price Index,2,continues services,1,CONTRIBUTION TO NEW PENSION SCHEME,7,CONTRIBUTORY PENSION FUND,2,CONVERT FIGURES INTO WORD EXCEL,8,COPARCENER,1,CorpMcash,1,corporation bank,3,correction etds,10,CORRECTION IN PAN DATA,8,correction in section,4,CORRECTION RETURN,6,CORRECTION RETURN.ETDS,7,cost accounting,4,cost audit,5,cost inflation index,16,cost inflation index 2012-13,2,COST INFLATION INDEX FY 2010-11,1,COST INFLATION INDEX FY 2011-12,1,COST OF INDEXATION CALCULATOR,5,court case in entry tax punjab,2,cpc phone number,6,cpf,6,Credit card,12,CREDIT CARD BILL PAYMENT ICICI BANK,6,credit scores,1,cricket team,1,critical illness,1,CROSSED DEMAND DRAFT,2,CRR,14,crr reducred,1,CS DIVESH GOYAL,59,CST,12,CST 3% OR 2 %,3,cst act 1956,1,cst form,6,CST FORM STATUS,1,cst rate changed,3,CST REDUCE RATE,4,ctt,3,currency,2,CURRENCY TRADING ILLEGAL,1,custom,4,custom changes in budget,11,cusual leave,1,DA MERGE,2,da rate,16,da rate 01.07.2012,4,da rate january 2013,4,da rate july 2012,3,da rate wef 01.01.2012,4,date extension,4,DDO ASK RENT RECIPT,1,ddt,4,dearness allowance,14,Debit card,6,DEBT EQUITY RATIO,1,debt funds,6,debt trap,1,declared goods,1,DEDUCTION 80C,6,deduction for higher studies,2,deduction on saving bank interst,2,deduction u/s 80DD,3,Deemed income of employee,1,deemed services,1,defective return,2,defence officers,1,defence pay,1,defence pay scales,2,DELAY IN FILING,3,delete ledger in tally,1,DELHI HIGH COURT,11,demat,3,deposit tax of two quarter in single challan,3,depreciation,13,depreciation on car,3,depreciation on commercial vehicle.,2,DEPRECIATION ON INTANGIBLE ASSETS,3,depreciation rate,12,depreciation rate 2009-10,3,DETAIL AFTER E FILLING,1,DETAIL OF TIN,1,Determination of value,1,DIFFRENT TYPE OF TAXES,1,digital signature,9,din,4,direct payment in bank account,1,DIRECT SUBSIDY,4,direct tax bill,6,direct tax changes in budget,17,direct tax code,39,direct tax code 2009,6,dis,1,Disability insurance,2,discussion Paper,4,distribution of salary,2,dividend distribution tax,2,dividend striping,1,dnd,1,do not call.,1,document identification number,1,document ientification number,1,documents required for service tax registration,5,domestic transfer pricing,5,donation,2,dot,1,double taxation,1,dow jones,1,download,1,download 89(1) relief calculator,5,download direct tax code 2012,10,download form 16A,7,download fvu,28,download idfc INFRA BONDS FORM,1,draft reply,1,drawback rates,2,dtaa,4,dtc,10,DUE DATE AY 2010-11,2,due date ay 2011-12,3,due date extended,45,due date extended to 31.08.2012.,2,due date for service tax return,34,due date form 16,17,due date form 16a,9,due date June,2,due date march tax,7,due date of return 2008-09,3,due date pf esi,6,due date to deposit tds,15,DUE DATES,12,DUE DATES CALENDAR,6,DUE DATES CALENDER,8,DUE DATES INCOME TAX,21,DUE DATES SERVICE TAX,41,DUE FAMILY PENSION,1,DULICATE PAN,1,DUPLICATE TAN,5,dvat,8,e book Income Tax rules,3,e book on service tax,22,E ERA OF TAXES,1,e filing do and don'ts,7,e filing of audit report,10,e filing processing status,8,e filing software excel free,4,e filing through evc,7,e filing utilities,6,e mode for notice to shareholder,1,e notice to share holder,1,e payment of epf,5,E PAYMENT OF EXCISE DUTY