TaxTMI 
TaxTMI 
2012 (12) TMI 490
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....e order passed by the Assessing Officer was illegal, void and without jurisdiction. 4. That the order of the Ld. CIT(As) is erroneous both in law and on facts as Ld. CIT (As) had failed to appreciate that the non-deduction of tax at source was on account of the stay order of. the Hon'ble Jurisdictional High Court which was binding both on the Income Tax Department as well as the appellant and therefore, there can be no demand on the appellant u/s 201 & 201(IA) of the Income tax Act 1961. 5. That the order passed by the Ld. CIT(As) in sustaining the order dated 31.12.09 passed by the assessing Officer is erroneous both in law and on facts on account of total failure to consider the provisions of deduction of TDS specially section 192 under which TDS can be deducted only during the Financial Year and not at any time thereafter. Since during the Financial Years under consideration, the interim order of the Hon'ble High Court was in operation, therefore, the appellant could not deduct TDS and therefore could not be held liable u/s 201 & 201(IA) of the Income tax Act. 2. During hearing of these appeals, we have heard Shri Sumit Nema, learned counsel for the as....
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.... facts, in brief, are that the assessee is a scheduled bank having several employees on its roll. The assessee is carrying on the business of banking having its corporate office at Indore. The employees of the assessee bank formed a union in the name of "All India State Bank of Indore Officers' Coordination Committee" (referred hereinafter as "AISBOC"). As per the Revenue, the assessee allowed perquisite to its employees which is part of their salary and the assessee being the person responsible for complying with the provisions of Chapter XVII of the Act and thus was liable to deduct tax at source as required u/s 192 of the Act. Further, as per the Revenue, the assessee did not comply with the requirement. The assessee was treated as assessee in default and the total amount payable u/s 201(1) and 201(1A) was calculated as mentioned at page 11 of the assessment order. The amounts were worked out at Rs. 1,43,24,012/-. The assessment order was carried in appeal before the CIT(A) wherein it was affirmed. The aggrieved assessee is in further appeal before the Tribunal. 5. If the impugned issue is analysed with the help of cases cited by the learned counsel for the assessee and the pro....
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....ii) did not create deeming fiction and the department had to establish that there was a concession. This cannot be stretched to section 192 of the Act, therefore, the assessee employer cannot be treated as the assessee in default with retrospective effect for not deducting TDS. It was further held that interest cannot be charged retrospectively. It is worth mention that this decision of the Nagpur Bench was affirmed by the Hon'ble Bombay High Court in ITA No. 93/2008 vide order dated Ist October, 2010. Identically, in the case of BSNL (supra) (A.Ys. 2002-03 to 2008-09) the Indore Bench of the Tribunal followed the aforesaid decision of Nagpur Bench in the case of BSNL (supra) and held that the assessee was not to be treated as assessee in default u/s 201(1A) of the Act. Identical decision was taken by Mumbai Bench of the Tribunal in ONGC (supra) by following the decision of the Nagpur Bench. Likewise the Hydrabad Bench of the Trinal in State Bank of India (supra) followed the decision of the Nagpur Bench. We find that the decisions in the case of Western Coal Field, (supra)/Canara Bank (supra) were disposed of by the Hon'ble High Court at Bombay (Nagpur Bench) (Income Tax Appeal No....
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....iod has already been paid. Consequently, the employer cannot be made liable for the consequences set out in Section 201 of the Act on account of the retrospective amendment to Section 17(2) of the Act. (12) Moreover, as held by the Tribunal, the Legislature while retrospectively amending Section 17(2)(ii) of the Act has not chosen to amend Section 192 or Section 201 of the Act. Therefore, the employer assessee is not hit by the retrospective insertion of Explanation to Section 17(2) of the Act. (13) We make it clear that we are not expressing any opinion as to validity of the retrospective amendment inserted by Finance Act, 2007. In the facts of the present case, the decision of the Tribunal that the assessee was not obliged to deduct tax at source and accordingly not liable to the consequences set out in section 201 of the Act does not suffer from any infirmity." 6. If the totality of facts available on record and the assertion made by the learned respective counsel are kept in juxtaposition, we find that section 192 deals with the deduction of tax at source. It is computed on the estimated income of the assessee under the head "salary" and the liability is at the time of payme....