TaxTMI 
TaxTMI 
2022 (10) TMI 1091
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.... 5. That the Learned C.I.T. (Appeals) has erred in upholding the decision of the Assessing Officer regarding the not allowing credit of TDS paid on behalf of the appellant during the year under consideration. 6. That the appellant craves leave to add, alter, amend or withdraw any grounds of appeal before the final hearing. 2. The ld. AR inviting attention to the impugned order submitted that the assessee after retiring from the Armed Forces thereafter had been re-employed. It was submitted that he had been drawing a hefty salary on which the employer had deducted TDS of Rs.9,37,296/-. Credit of the said TDS was denied to the assessee on the ground that the employer had not deposited the same to the credit of the Government of India. The unfairness of the said action was challenged in the proceedings u/s 154 before the AO. It was submitted that it had been argued that the salary received by the assessee was minus the TDS. Form No.16 issued to the assessee in support thereof was relied upon. It was submitted that the assessee has no control over the employer. The Rectification application filed by the assessee before the AO was dismissed requiring the assessee to....
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....cause of the present appeal before us. For ready reference, the relevant finding granting relief addressed in para 6.1 and the directions in para 8 which are a subject matter for consideration in the present proceedings are extracted hereunder : "6.1 These grounds of appeal are effectively against the denial of the TDS credit of Rs. 9,37,296/- to the appellant. The appellant has contended that during the year under consideration, TDS of Rs. 9,37,296/-was deducted by his employer, however, either the same was not deposited or wrongly deposited by his employer. As a result of which the same is not reflecting In his Form 26AS. The appellant has furnished a copy of Form 16 issued to him and has also relied on a catena of judgments of various High Courts in his submission. On perusal of the Form 16 furnished by the appellant, it is observed that it only mentions the amount of tax deducted but does not mention the amount of tax deposited in the Central Government account. Further, no challan or reference number is mentioned on the Form 16 which could indicate deposition of the TDS deducted by the employer. Therefore, it is quite evident that the TDS deducted has not been deposit....
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....sed'. However, in light of the provisions of section 205 and the Board's OM dated 11.03.2016, the recovery of this demand may not be effected from the appellant, but rather the deductor has to be treated as assessee in default as per the provisions of section 201. 7. The Ground no. 1 is general in nature and hence not adjudicated upon. 8. The Ground no. 4 is against the levy of interest u/s. 234A, 234B and 234C. As the charge of these interest is consequential in nature, the AO is permitted to charge these interests as per the provisions of the Act. However, as already mentioned in para 6.2, it is the deductor who has to be treated as assessee in default for the purposes of recovery." (emphasis supplied) 7.1 At the outset, it may be appropriate to address the relevant provisions which came to be considered by the Courts on the issue. Section 203 of the Income Tax Act, 1961 casts a duty on the person deducting tax to furnish certificate for tax deducted at source to the person to whose account credit has been given. Section 203 casts the duty on the person deducting tax to prepare statement for such period giving the details of the tax deducted at sou....
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.... observed that "we are concerned with the second mode of recovery, namely recovery of tax by deduction at source". Reference may also be made to another decision of the Hon'ble Bombay High Court in the case of DIT Vs N.A.C. Network Asia, LIC (2009) 313 ITR 187 (Bom) and decision of the Hon'ble Gujrat High Court in the case of CIT Vs Ranoli Pvt. Ltd. (1999) 235 ITR 433 (Guj) which again lay down similar position of law. 7.3 Accordingly, on a consideration of the aforesaid decisions in the light of the provisions of the Act, I find that the directions given in para 8 which have caused the assessee to come in appeal before the ITAT, at best can be considered to be ambiguous and at worst the directions were not called forth and infact can be said to be contrary to law. The reason for holding directions to be ambiguous is on account of the fact that levy of interest u/s 234A, 234B and 234C is consequential to the additions made/sustained in the assessment order. Thus, where the addition stood deleted holding that in the facts of the present case, the assessee cannot be said to be an assessee in default. The occasion to attract charging of interest u/s 234A, 234B and 234C did ....