TaxTMI 
TaxTMI 
2026 (1) TMI 415
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.... dated 19.07.2013, annexed at Annexure 'C' (Colly), and to cancel intimation under Section 245 for AY Issue a writ of certiorari and/or a writ mandamus direction to and/or any writ the other directing order the outstanding 2016-2017 dated 03.02.2017, annexed Annexure 'G'; (B) Issue a writ of certiorari and/or a writ mandamus and/or any other of to cancel the writ, direction or order directing the respondent to cancel the outstanding demand and cancel the intimation under Section 143 (1) for AY 2009- 2010 dated 23.03.2011, the intimation under Section 143 (1) for AY 2012-2013 dated 19.07.2013, annexed at Annexure 'C' (Colly), and to cancel intimation under Section 245 for AY 2016-2017 dated 03.02.2017, annexed Annexure 'G' and to at return the amount already adjusted by the respondent along with statutory interest" 4. The petitioner is a pilot by profession, who was an employee of M/s Kingfisher Airlines. During the relevant assessment years, Kingfisher Airlines (deductor) had deducted Tax Deducted at Source (hereinafter 'TDS') of Rs.6,28,551/- for Assessment Year (A.Y) 2009-2010 Rs.14,17,015/- Rs.14,80,466/-for for AY 2010-2011, AY 2011-2....
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.... for the respondents submitted that there is a delay in filing the writ petition and there is no evidence to show that the TDS after deduction has been paid by the employer M/s. Kingfisher Airlines. 12. So far as the issue raised with regard to ascertaining of amount of TDS is concerned, we find that the petitioner in his representation dated 25.6.2012 written to the Assistant Commissioner of Income Tax has mentioned and supplied the copy of the Form-16 duly certified by the employer showing that TDS of Rs. 6,28,531/- has been deducted. 13. We have heard learned advocates for the respective parties. We have noticed that one of the Pilots of M/s. Kingfisher Airlines filed a writ petition being SCA No.6193 of 2021 claiming similar reliefs. This Court, by placing reliance on another decision in case of Devarsh Pravinbhai Patel v. Assistant Commissioner of Income Tax Circle 5(1)(1) in SCA No. 12965 of 2018 with SCA No. 12966 of 2018, decided on 24.09.2018 has disposed of the petitions which were also filed by the Pilots of M/s. Kingfisher Airlines. The relevant observation by the Coordinate Bench in Order dated 15.11.2021 in case of Kartik Vijaysinh Sonavane v. Deputy Commissione....
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....has been produced and consequently department is directed to give credit of tax deducted at source to the petitioner assessee - deductee to the extent form no.16 A issued by the deductor have been issued. Consequently, the impugned demand notice dated 6.1.2012 (Annexure D) is quashed and set aside. However, it is clarified and observed that if the department is of the opinion deductor has not deposited the said amount of tax deducted at source, it will always been open for the department to recover the same from the deductor. Rule is made absolutely to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs." 5. Facts in both case are very similar. Under the circumstances, by allowing these petitions we hold that the Department cannot deny the benefit of tax deducted at source by the employer of the petitioner during the relevant financial years. Credit of such tax would be given to the petitioner for the respective years. If there has been any recovery or adjustment out of the refunds of the later years, the same shall be returned to the petitioner with statutory interest." 8. In case of Om Prakash Gattani (supra) Gau....
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....ucted the amount at all. It may or may not fall in a different category from one where the amount has been deducted and not made over to the Central Government. We are concerned with the latter category of cases. As indicated earlier, on the facts it is nobody's case that the amount was actually not deducted at source by Chandra Agencies. What seems to be in dispute is the deposit of the said amount in the account of the Central Government. The Income tax Department seems to have made enquiries about the exact date of payment to the Central Government which Chandra Agencies could not furnish on the ground that the papers were forwarded to the chairman of Vaibhavshali Bumper. In such a category of cases we feel that the amount of tax can be recovered by the Income-tax Department treating the person responsible to deduct tax at source as an assessee in default in respect of the tax. It would not be possible to proceed to recover the amount of tax from the assessee. The assessee cannot be doubly saddled with the tax liability. Deduction of tax at source is only one of the modes of recovery of tax.. Once this mode is adopted and by virtue of the statutory provisions the person resp....
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....ax deducted has to be given on mere deduction of the amount at source, in that event, perhaps, there would be no legal justification to treat the person responsible to deduct the amount at source as an assessee in default in respect of the tax. Once credit on account of payment of tax is given, the tax liability will stand discharged. Any step to recover the amount of tax can be taken only in case the tax liability is not discharged and it still subsists. In this view of the matter, Shri K. P. Sarma, learned counsel appearing for the Revenue, has rightly defended the note appended by the Assessing Officer in the order of assessment making it clear that credit for the amount deducted was not being given and that will be given only when evidence as to actual payment of the amount to the Central Government is furnished. But this position would not legally justify initiation of recovery proceedings against the assessee from whose income tax has been deducted at source, but the person responsible to deduct the tax fails to deposit the same in the Government treasury. The statutory scheme evolved to employ this mode of recovery of tax at source also points to the same position and in our....