TaxTMI 
TaxTMI 
2023 (4) TMI 1102
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....rred in law and on facts confirming action of AO calling upon the appellant to again pay taxes already deducted by the payer failing to follow directions of Hon'ble ITAT to conduct proper & just inquiry in true spirit with respect to deduction of tax from payment of bills by the payer as confirmed in the communication addressed to the appellant. 3. Ld. CIT (A) erred in law and on facts confirming action of AO not granting credit of TDS of Rs. 33, 09, OOO/- on the ground of non assertion as to whether the deductor actually deducted tax from payments made to the appellant or if deducted whether it was deposited into Government Account. 4. Ld. CIT (A) erred in law and on facts to hold that AO had taken possible steps to verify the issue as per the directions of Hon'ble ITAT overlooking the fact that AO relying on inadequate and no inquiry by officers at Kolkata denied credit of tax deducted but not deposited by the payer. 5. Ld. CIT (A) gravely erred in law and on facts to hold that neither the appellant nor AO produced additional corroborative evidence before the appellate authority not considering submissions clearly depicting the IP addresses, Mail box details alon....
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.... has recorded a finding that facts indicate that no taxes were deducted. On the other hand, assessee pleaded that TDS was made by the payer. We find that none of the authority has carried out any investigation in this connection. The alleged correspondence submitted before us was never cross verified. We fail to understand the basis of recording the finding by the ld. CIT(A) in paragraph no.5.1 extracted supra. How the ld. First Appellate Authority reached at conclusion that tax was not deducted at source? This conclusion has been based on the inference that since the assessee failed to pursue legal remedies against the deductor for persuading him to deposit the deducted amount in the Government Treasury. This inference is totally misplaced. It is not supported by any evidence. Considering this aspect, we deem it appropriate to set aside this issue to the file of the Assessing Officer. The Assessing Officer shall first determine as to whether on the alleged payment received by the assessee, TDS was to be deducted or not. If deducted, then whether the payer has deducted the tax or not. If it is established that payer has deducted the tax, then the ld. Assessing Officer shall follow ....
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....n this case. In my opinion, (he incident of payment of taxes in Government Treasury is independent and can lend immense support to a view that the incident of deduction of TDS has really happened In my opinion, any direction to accord credit for TDS which has not been deposited in Government account is nothing less than of a fraud on Government Exchequer. The ground no. 1 & 2 of appeal are dismissed. 9. Being aggrieved by the order of learned CIT(A), the assessee is in appeal before us. 10. The learned AR before us filed a paper book running from pages A-1 to 59 and submitted that the fact that the party has deducted the TDS on the payment made to the assesse can be verified from the trails of the emails which are placed on pages 20 to 21 of the paper book. Likewise, the letter was issued by the party placed on page 35 of the paper book stating that it is going to deposit the amount of TDS which will reflect against the name of the assesse immediately. All these facts were duly brought to the notice of the assessing officer which were not disputed by the authorities below. Thus, it was prayed by the learned AR that the benefit of the provisions of section 205 should be granted t....
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.... aside the file to the AO casted obligation on him (the AO) to cross verify the evidences furnished by the assessee and find out the fact that tax was deducted or not by the party M/s Jain Infraproject Ltd. In our considered opinion, the AO in the set aside proceedings failed to comply with the directions of the ITAT in its true sense. As such, the AO after receiving report from DDIT(Inv.) Unit-6 Kolkata that the party has not responded to the notices issued did not try to adopt any other means to verify and determine the fact whether tax at source was deducted or not against the invoices issued by the assessee. On the contrary, the assessee has discharged her onus by furnishing the necessary details to justify that the party i.e. M/s Jain Infraproject Ltd has deducted the TDS. Even on consideration of the circumstantial evidences, the difference between the amount of the invoices raised and the amount received by the assessee from the party is exactly matching with the amount of TDS. Thus, the circumstantial evidences suggest that the assessee has received the payment after the deduction of TDS by the party i.e. M/s Jain Infraproject Ltd. The necessary details of the invoices rais....