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TMI Blog2019 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2015 and none of the three cases involved a case of continuing default where the assessee has defaulted in furnishing the TDS statement even after 01.06.2015. In view of the settled law that where there is difference of opinion between different High Courts on an issue, then the one in favour of assessee needs to be followed as held by the Hon ble Supreme Court in Vegetable Products Ltd [ 1973 (1) TMI 1 - SUPREME COURT] . In the absence of any decision by the jurisdictional High Court, the decision of the Hon ble Karnataka High Court supports the case of the assessee. In light of above discussion and in the entirety of facts and circumstances of the case, there is no basis for levy of fees u/s 234E and the same is hereby directed to be deleted in all three cases - appeals allowed - ITA No.16, 17 & 18/Asr/2019 - - - Dated:- 25-7-2019 - Sh. Vikram Singh Yadav, Accountant Member And Sh. N.K. Choudhry, Judicial Member For the Appellant : Sh. P. N. Arora (Adv.) For the Respondent : Sh. M. P. Singh (CIT DR) ORDER PER: VIKRAM SINGH YADAV, A.M. These are three appeals filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 in the case of Medical Superintendent Rural Hospital, DOBI BK vs. DCIT, CPC (TDS), Gaziabad [2018] 100 taxmann.com 78 (Pune-Trib.) has held that since amendment to section 200A with effect from 1-6-2015 is prospective in nature, Assessing Officer while processing TDS returns for period prior to 1-6-2015 was not empowered to charge fees under section 234E by way of intimation issued under section 200A in respect of defaults before 1-6-2015. It has been further held in the above said Judgement of the Pune bench that where there is difference of opinion between different High Courts on an issue, then the one in favour of assessee needs to be followed as held by the Hon'ble Supreme Court in Vegetable Products Ltd. (supra), in the absence of any decision rendered by the jurisdictional High Court. Para No.17 of this judgment is reproduced below for the sake of quick reference:- Before parting, we may also refer to the order of CIT(A) in relying on the decision of Hon'ble High Court of Gujarat in Rajesh Kourani (supra). On the other hand, the learned Authorized Representative for the assessee has pointed out that the issue is settled in favour of assessee b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that the levy of fee u/s 234E is illegal and is not called for and is supported by the following decisions of ITAT, Amritsar Bench, Amritsar:- G S S S Hari Ke Kalan ICT Society vs. DCIT (tds) Ghaziabad in ITA No. 103/Asr/2015, order dated 09/06/2015 relating to Assessment Year 2013-14. Dabra vs. DCIT (tds) Ghaziabad in ITA No. 100 101/Asr/2015, order dated 09/06/2015 relating to Assessment Year 2014-15. 3. The ld DR is heard who has relied on the order of the Hon ble Gujarat High Court in case of Rajesh Kourani (Supra). Further, he supported the findings of the lower authorities. 4. We have heard the rival contentions and purused the material available on record. 5. In case of Gita Star Hotels Resorts Private Ltd., Jaipur vs. DCIT, CPC, TDS, Ghaziabad (in ITA No. 14/JP/2017 dated 29.10.2018) where, one of us was a member of the Bench, it was held as under: 8. We have heard the rival contentions and perused the material available on record. In the present case, the undisputed facts are that the assessee filed its TDS return (Form 26Q) for the fourth qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO u/s 200A of the Act. Thus, both the filing of the return of income by the assessee and processing thereof has happened much after 1.6.2015 i.e, the date of assumption of jurisdiction by the AO u/s 200A(1)(C) to levy fees under section 234E of the Act. Even though the quarterly return pertains to quarter ended 31.3.2015, the fact remains that there is a continuing default even after 1.6.2015 and the return was actually filed on 12.09.2015. The said provisions cannot be read to say that where an assessee file his return of income for the period falling after 1.6.2015 and there is a delay on his part to file the return in time, he will suffer the levy of fees, however, an assessee who has delayed the filing of the return of income even pertaining to the period prior to 1.06.2015, he can be absolved from such levy even though there is a continuous default on his part even after 1.6.2015. In our view, the AO has acquired the jurisdiction to levy the fees as on 1.06.2015 and therefore, any return filed and processed after 1.6.2015 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 of the Act. Therefore, ir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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