TaxTMI 
TaxTMI 
2024 (7) TMI 1128
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....) in confirming the non grant of credit of TDS for want of Form 16A. This issue is common in three appeals. Second issue is specific to AY 2017-18 arising out of alleged error in in computing the demand in the computation sheet at the assessee income of 3,61,38,607/- as against the income of Rs. 3,58,17,440/- 3. In regard to issue no. 1 as casted above, we take relevant facts of AY 2016-17. Brief facts of the case are that the assessee company had filed its ITR on 15.10.2016 declaring total income of Rs 2,54,22,670/-. Tax payable on such income was computed to be Rs. 87,70,730/- . However, the assessee had paid an advance tax amounting to Rs. 15,00,000/- and tax was also deducted at source of Rs. 90,04,694/-. Thus, a total tax amounting to Rs. 1,05,04,694/- was accordingly paid by the assessee as against the liability to pay tax of Rs. 87,70,730/-. Therefore, the assessee claimed a refund of Rs. 17,33,960/- being excess tax paid by the assessee. Thereafter, the case of assessee was selected for scrutiny and nothing adverse was found. Accordingly, the income of the assessee was assessed at returned income. However, the refund was denied and a demand notice u/s 156 for Rs. 65,73,20....
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....sis of above document, it cannot be logically and empirically inferred that there was any deduction of TDS by the deductor. Thus, the appellant has not been able to establish the fact that TDS was actually deducted. It is an undisputed fact that the TDS (if deducted) was never paid into government account. 17. Appellant is failed to produce any documentary evidence (Form 16A issued by the deductor) in support of his claim that such TDS was deducted. Mere filing of ledgers not establishes the fact that TDS has been deducted. 18. Credit of TDS is based on deposition of the same by respective deductor. Appellant had submitted copy of Form 26AS (page no 51-56 of paper book submitted on 13.11,2023) wherein also respective TDS amounts are not reflecting. Since amount of TDS totalling to Rs. 1,32,90,467/- not appearing in Form 26AS provided by appellant himself, credit of same could not be granted by Assessing Officer. 19. The appellant has drawn attention towards the provisions of section 205 of me Act and has stated that in the light of provisions of section 205, the Assessing Officer cannot make any recovery from him. The appellant has also drawn attention to the decision of Hon&....
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....orders listed. The second condition is that assessee must be aggrieved by those orders. Admittedly, in this case, the order of assessment passed under Section 143 (3) of the Act. Therefore, specified order is assessment order passed under Section 143(3) of the Act. This order is listed in section 246A (1) (a) of the Act. Therefore it is one of the specified orders against which appeal can be preferred before the LD CIT (A). In this assessment order, the learned Assessing Officer has charged interest under Section 234A, 234B, 234C and also under Section 220(2) of the Act. The assessee is aggrieved by part of the order passed under Section 143(3) read with section 254 of the Act, wherein the learned Assessing Officer has charged interest under Section 234A, 234B, 234C and also 220(2) of the Act. Therefore, there is a specified order i.e. order under Section 143(3) of the Act by which assessee is aggrieved and therefore, assessee is entitled to file an appeal in the present case before the learned CIT (A) u/s 246A(1)(a) of the Act . It is not the case of the Revenue that assessment order is not specified order under Section 246A (1) of the Act and assessee is not aggrieved with that. ....
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....no further tax shall be called upon from the assessee. The natural corollary to same being that assessee has a right to get the credit of that TDS amount qua the demand against him. Reliance is placed on the following judicial pronouncements wherein it has been held that once tax has been deducted, it's the responsibility of the deductor to deposit the same with the government, deductee cannot be penalized and demand can not be raised on short fall of TDS on deductee: * SANJAY SUDAN VERSUS THE ASSISTANT COMMISSIONER OF INCOME TAX & ANR., 2023 (2) TMI 1079 - DELHI HIGH COURT, Dated: - 17-2-2023, where in Hon'ble Delhi High Court has held as follows; "9.2 The fact that the instruction merely provides that no coercive measure will be taken against the assessee, in our view, falls short of what is put in place by the legislature via Section 205 of the Act. 10. Therefore, in our view, the petitioner is right inasmuch as neither can the demand qua the tax withheld by the deductor/employer be recovered from him, nor can the same amount be adjusted against the future refund, if any, payable to him. 11. Thus, for the foregoing reasons, we are inclined to quash the notice dated 28.02....
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....latter cannot be burdened with the responsibility to somehow procure Form 16A to secure benefit of the provision of Section 205 of the Act. 12. We are in respectful agreement with the view taken by the Bombay High Court in the case of Yashpal Sahni (supra) to the effect that from language of Section 205 of the Act, it is clear that the bar operates as soon as it is established that the tax had been deducted at source and it is wholly irrelevant as to whether the tax deducted at source is deposited or not and whether Form No. 16A has been issued or not. 13. In view of the aforesaid, we are unable to find any error, much less an error apparent on the face of record which would persuade us to engage in reviewing the impugned order dated 31.05.2023. The review application is, thus, dismissed. * INCREDIBLE UNIQUE BUILDCON PRIVATE LIMITED VERSUS OFFICE OF THE INCOME TAX OFFICER WARD (12) (1) NEW DELHI, 2023 (6) TMI 1135 - DELHI HIGH COURT, Dated: - 31-5-2023 "13. Clearly, what follows is that while respondent/revenue cannot recover the deficit tax at source from the petitioner, which was deducted and pocketed by CAL, and they cannot also refuse to grant credit for the same. The r....
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....in our view, would be entitled to the credit of the amount retained by the deductor towards tax. Any other view would result in a situation where even though the assessee would have grossed up his income [by including the tax deducted at source] and offered the same for taxation, he would be denied the benefit of having the resultant tax demand adjusted against tax deducted at source by the payer. This handicap the assessee/deductee [i.e., the respondent/assessee] would suffer only because the deductor, who acts as the agent of the Central Government, chooses not to deposit the amount retained towards tax." * SHRI RAJESH DADU HYDERABAD VERSUS DY. C.I.T. CIRCLE 4 (1) HYDERABAD, 2023 (4) TMI 61 - ITAT HYDERABAD, Dated.- March 31, 2023, the proposition is further expanded by allowing credit of such TDS:- "3. Facts of the case, in brief, are that the assessee is an individual and filed his return of income for the impugned A.Y on 31.10.2019 declaring total income at Rs. 1,57,94,132/- and paid tax of Rs. 53,85,276/- consisting of advance tax of Rs. 30,00,000/- and tax deducted at source of Rs. 25,05,786/- and claimed a refund of Rs. 1,20,510/-. The CPC Bengaluru in the intimation u/....