TaxTMI 
TaxTMI 
2023 (10) TMI 625
X X X X Extracts X X X X
X X X X Extracts X X X X
....of order dated 31.05.2023 of this court whereby the writ petition was finally allowed, thereby directing the respondent/revenue to refund a sum of Rs. 11,39,870/- to the writ petitioner. Being hit by a delay of about 45 days, the review applicant has also filed an application under Section 151 CPC for condonation of delay. 2. On notice, the non-applicant writ petitioner entered appearance through counsel, who in the interest of expeditious disposal opted not to oppose the delay condonation application, which explains the delay in filing the review application broadly on the ground of administrative rigmaroles. As such, the application CM Appl. 50728/2023 is allowed and delay in filing the review application is condoned. 3. We have hea....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an issue which is being agitated before the concerned bench of the National Company Law Tribunal (NCLT). 9. We may note that according to the petitioner, CAL only deposited Rs. 69,897/- towards tax deducted at source, resulting in a deficit of Rs. 24,26,302/-. This aspect is not disputed by the respondent/revenue. 9.1 Therefore, the grievance of the petitioner is that it has not been given credit for the tax deducted at source by CAL, which was not deposited with the respondent/revenue. 10. The petitioner thus avers that instead of being granted credit for the tax deducted at source by CAL, a demand amounting to Rs. 15,24,840/- was raised against it. 11. In these circumstances, the petitioner has approac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of Tax Deducted at Source is given to the person only if it is paid to the Central Government Account. However, as per Section 205 of the Act the assessee shall not be called upon to pay the tax to the extent tax has been deducted from his income where the tax is deductible at source under the provisions of Chapter-XVII. Thus the Act puts a bar on direct demand against the assessee in such cases and the demand on account of tax credit mismatch cannot be enforced coercively..." 9. The question, therefore, which comes to fore, is as to whether the respondents/revenue can do indirectly what they cannot do directly. 9.1 The adjustment of demand against future refund amounts to an indirect recovery of tax, which is barred und....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... grant credit for the same. The rationale being what the appellant/revenue cannot do directly, it is impermissible for it to reach the same end indirectly. 14. Given this position, the prayer made in the writ petition is allowed. 15. The respondent/revenue will refund Rs. 11,39,870/- to the petitioner, as prayed. 16. The writ petition is disposed of in the aforesaid terms. 17. Parties will act based on the digitally signed copy of the order". 4. As noted in the order sought to be reviewed, at the time of disposal of the writ petition, the learned counsel for review applicant had not disputed that the issue raised in the present writ action stands covered by the judgment in the case of Sanjay Sudan (sup....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Sanjay Sudan (supra). 7. There is no dispute that in the present case, it was mandatory duty of Clutch Auto Ltd to deduct tax at source qua the payments made to the nonapplicant/assessee. Also not in dispute is the legal proposition that vide Section 205 of the Income Tax Act, where the tax is deductable at source, the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from his income. 8. No doubt, Form 16A is amongst others, a piece of evidence which can establish deduction of tax at source. That said, Form 16A is not the only piece of evidence in that regard. In a case where the assessee can show reliable material other than Form 16A and prima facie establish the deduction of tax at....
X X X X Extracts X X X X
X X X X Extracts X X X X
....after receiving the complete reply, appropriate action would be taken, if warranted; but after the said vague answer to the application, the Public Information Officer disposed of the RTI application itself. Most importantly, before the Public Information Officer of the review applicant, the Clutch Auto Ltd simply informed having approached the National Company Law Tribunal for initiation of insolvency process but did not raise even a whisper of challenge to the claim of the non-applicant/assessee qua the tax deducted at source. 11. Despite the aforesaid, concerned officers of the review applicant opted not to quench their baseless doubt by way of detailed inquiry qua deduction of tax at source and came up with this review application ra....