TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 446
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....ally. During the period April, 2012 till October, 2012, the petitioner was employed under opposite party no.6-M/s. Corporate Ispat alloys Ltd. and received gross salary of Rs.25,39,766/-, out of which a sum of Rs.5,90,112/- was deducted as tax at source under Section 192 of the I.T. Act. Upon repeated request, opposite party no.6 did not issue Form 16 for the assessment year 2013-14. 2.1. Form 26AS drawn from the Income Tax Department's website reflects a sum of Rs.3,21,379/- was deducted and deposited by opposite party no.6. There was a difference of Rs.2,68,733/- in between the tax deducted by opposite party no.6 and the amount reflected in Form 26AS. Upon processing of the return of income, opposite party no.4 issued intimation under Section 143(1) of the I.T. Act on 26.07.2014 without taking into account TDS of Rs.2,68,733/- deducted by opposite party no.6 and while issuing such intimation, he also charged interest under Section 234B and 234C of the I.T. Act amounting to Rs.55,417/- for shortfall in payment of prepaid taxes. 2.2. Upon receipt of the intimation from opposite party no.4, the petitioner sent letter dated 05.08.2014 addressing to the Managing Director, M/s. Corpo....
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....been transmitted to the Income Tax Department, the petitioner is not held responsible for that. For inaction of the deductor in transmitting the amount, the assessee has been put to difficulty by not giving credit of tax deducted amounting to Rs.2,68,733/- which also carries interest of Rs.55,417/- under Section 234B and 234C of the I.T. Act for shortfall of prepaid taxes. It is further contended that Section 205 of the I.T. Act specifically provides bar against direct demand on assessee and the same has been clarified by the Central Board of Direct Taxes (CBDT), vide circular dated 01.06.2015, and in the office memorandum issued on 11.03.2015. Therefore, necessary compliance has to be made thereof and without doing so, demand raised under Annexure-4 amounting to Rs.3,24,149 for the assessment year 2013-14 cannot be sustained in the eye of law. To substantiate his contentions, he has relied upon Rakesh Kumar Gupta v. Union of India, (2015) 276 CTR (All) 379 : (2014) 365 ITR 143 (All); Kartik Vijaysinh Sonavane v. Deputy Commissioner of Income Tax, Circle-8, (2021) 132 taxmann.com 293 (Gujarat) : (2022) 440 ITR 11 (Gujarat) and Milan Arvindbhai Patel v. Assistant Commissioner of Inc....
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....essing Officer (TDS). In the instant case, the deductor, who failed to pay to the Central Government the tax deducted amounting to Rs.2,68,733/- is M/s Corporate Ispat Alloys Limited. It is further contended that on verification from the database, the jurisdictional Assessing Officer (TDS) of the defaulting deductor is DCIT/ACIT, TDS Circle, Ranchi. Therefore, the grievance made by the petitioner under Annexure-6 has to be taken into consideration by the very same authority at Ranchi and, more so, it is contended that the issue has been intimated to the DCIT/ACIT, TDS Circle, Ranchi with copy to the CIT (TDS), Patna, vide office letter no.5856 dated 15.02.2023, to take appropriate action in the instant case. It is further contended that though counter affidavit has been filed, what steps have been taken by the CIT (TDS), Patna, learned Senior Standing Counsel appearing for the Income Tax Department has not received any instructions, although in the meantime more than one year has elapsed. 5. This Court heard Mr. R.P. Kar, learned Senior Counsel along with Mr. A.K. Dash, learned counsel appearing for the petitioner and Mr. S.C. Mohanty, learned Senior Standing Counsel appearing for....
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....liance thereof, the Department has not filed affidavit. However, on 15.12.2022 this Court protected the interest of the petitioner by passing interim order to the following effect: "Till the next date of hearing, no coercive steps shall be taken against the petitioner." 8. Section 205 of the Income Tax Act reads as follows:- "205. Where tax is deductible at the source under [the foregoing provisions of this Chapter], the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from that income." In view of the aforementioned provision, it is made clear that the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from that income. 9. There is no dispute before this Court that tax has not been deducted by the deductor at source of the assessee. To mitigate such situation, the CBDT, vide clause-2 of its circular dated 01.06.2015, envisaged as follows: "2. As per Section 199 of the Act credit of Tax Deducted at Source given to the person only if it is paid to the Central government Account. However, as Section 205 of the Act the assessee shall not be called upon to pay the tax to th....
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..... State of U.P., (2009) 6 SCC 735 and Zuari Cement Limited v. Regional Director, Employes' State Insurance Corporation, Hyderabad and others, (2015) 7 SCC 690. The said principle has also been referred by this Court in the case of Subash Chandra Nayak v. Union of India, 2016 (I) OLR 922; Rudra Prasad Sarangi v. State of Orissa, 2021 (I) OLR 844; Bamadev Sahoo v. State of Orissa, 132 (2021) CLT 927: 2021 (Supp.) OLR 674; and Raj Kishor Deo v. State of Odisha, 2022 (II) OLR 415. 12. Section 205 of the I.T. Act read with CBDT circular, referred to above, being statutory one, the said provision has to be adhered to in letter and spirit and to give effect to such provision, CBDT circular was issued on 01.06.2015 and the office memorandum was issued on 11.03.2016. Therefore, for tax credit mismatch cannot be enforced coercively against the petitionerassessee. 13. In Rakesh Kumar Gupta (supra), the High Court of Allahabad held in paragraphs-12, 14 and 15 as follows: "12. The petitioner has suffered a tax deduction at source but has not been given due credit in spite of the fact that he has been issued a TDS certificate by a Government department. There is a presumption that the deduct....