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TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 1627
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.... section 143(1) dated 23.04.2021, the credit for TDS claimed was restricted to Rs. 2,13,150/- thereby short granting the TDS credit to the tune of Rs. 70,500/-. Aggrieved the assessee filed further appeal before the CIT(A). The CIT(A) directed the AO to verify the details and allow the credit of TDS as per Form- 26AS against the income of the assessee. The assessee is before the Tribunal contending that the TDS credit cannot be denied merely for the reason that the same is not reflected in Form 26AS filed by the payer. 3. There is a considerable delay of 583 days in filing the appeal before the Tribunal. The assessee has filed an affidavit in this regard stating that the assessee being not aware of the process appellate remedy, instead had approached the Pr. Commissioner of Income Tax by filing the letter seeking intervention in the matter. It is further stated by the assessee in the affidavit that the PCIT has clarified that he will not be in a position to resolve the issue and directed the assessee to approach the Tribunal against the order of the CIT(A). The assessee has accordingly submitted that substantial time has elapsed in pursuing this alternate course of remedy to get....
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....Ltd. (DELE04713C) 1,500/- 0/- TOTAL 75,500/- 0/- 8. We in this regard notice that the assessee has submitted the following documents during the appellate proceedings, to substantiate the claim that the amount received from the above parties is net of TDS and that the assessee has been writing to the parties as to why the tax deducted from his payments are not reflecting in Form 26AS due to which he is denied the credit "a. Acknowledgement of return filed for the A.Υ.2020-21 b. Computation of Total Income for the A.Y.2020-21 c. Financials for F.Y. 2019-20 d. Form 26AS for the A.Υ.2020-21 e. Copy of invoices raised in this regard. f. Copies of mails written to the deductor whose TDS credit has not been given requesting them for clarification for non availability of TDS credit in 26AS. g. Relevant pages of bank statement showing receipt of payment net of TDS h. Reconciliation & Summary of income prepared on the basis of credits of professional fees appearing in bank statement which shows entire income of professional received has been offered to tax which also matches wi....
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....due and that employer had also reportedly recovered the corresponding TDS thereon. The assessee thus contended that he is entitled to the credit of the said TDS, which was also reflected in the salary slip issued to the assessee. The main grievance of the assessee is that by not giving him the credit of TDS to the tune of Rs. 15,85,989/- which had already been deducted by the said employer, the AO/CPC was effectively collecting the said tax from him, which was actually payable by the employer who had unjustly withheld the said amount but did not deposit it to the Government. The Ld. CIT(A) had upheld this action of AO/CPC because he was of the view that since the Jet Airways/employer has not deposited the TDS of Rs. 15,85,989/-, the assessee could not be allowed its credit. 8. It is noted that the assessee had offered to tax his entire salary income which was due to him, in terms of Section 15 to 17 of the Act although he had not received three months salary from his employer. Based on the salary slips issued to him, which reflected the amount of TDS deducted by the employer, the assessee had claimed credit of TDS in the return of income. The employer however did not pay t....
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....ation issued u/s 143(1) of the Act, the AO/CPC had denied the credit of such taxes and raised demand for the same on the payee for which recovery was also initiated. This action of AO/CPC was challenged in writ petition, which was decided in his favour. The relevant findings of the Hon'ble High Court is as follows: 6. Facts on record are not seriously in dispute. As noted, the petitioner sold an immovable property for sale consideration of Rs. 9 crores. The purchasers paid only Rs. 8 crores 91 lakhs retaining Rs. 9 lakhs towards TDS. The department does not argue that this amount of Rs. 9 lakhs so deducted is not in tune with the statutory requirements. It appears undisputed that the deductors did not depositing such amount in the Government revenue. Under the circumstances, the petitioner is asked to pay the said sum again, since the department has not recognized this TDS credit in favour of the petitioner. 7. Section 205 of the Act carries the caption "Bar against direct demand on assessee". The section provides that where tax is deducted at the source under the provisions of Chapter XVII, the assessee shall not be called upon to pay the tax himself to the exten....
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....redit of the tax deducted at source. However, once it is established that the tax has been deducted at source, the bar under Section 205 of the Act comes into operation and the revenue is barred from recovering the TDS amount once again from the employee from whose income, TDS amount has been deducted. It is pertinent to note that the purpose of issuing TDS certificate under Section 203 of the Act is to enable the assessee to avail credit of the tax deducted at source in the relevant assessment year. If the TDS certificate is not issued, then under Section 199 of the Act, the assessee from whose income, tax has been deducted at source will not be entitled to take credit of the said amount. In that event, on account of the non availability of the credit, the assessee would be liable to pay tax once again even though the tax was deducted at source. Thus, it would be a case of double taxation which is not permissible in law. To avoid such anomaly, Section 205 has been enacted, to the effect that, once the tax is deducted at source by the employer-company, then, the person from whose income, the tax has been deducted at source shall not be called to pay the said tax again. From the lan....
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....ount from the petitioner-assessee in view of the specific bar contained under Section 205 of the Act. The fact that the petitioner is not entitled to the credit of the tax deducted at source for the non issuance of the TDS certificate by the respondent No. 6, cannot be a ground to recover the amount of tax deducted at source from the petitioner. In other words, even if the credit of the TDS amount is not available to the petitioner assessee for want of TDS certificate, the fact that the tax has been deducted at source from salary income of the petitioner would be sufficient to hold that as per Section 205 of the Act, the revenue cannot recover the TDS amount with interest from the petitioner once again." 8. The situation arising in the present petition is similar. The department does not contend that the petitioner did not suffer deduction of tax at source at the hands of payer, but contends that the same has not been deposited with the Government revenue. As provided under Section 205 of the Act and as elaborated by this Court in case of Yashpal Sahni (supra) under such circumstances the petitioner cannot be asked to pay the same again. It is always open for the departmen....
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....i High Court. Applying the aforesaid two decisions of the Bombay High Court as well as Gauhati High Court, the facts of the case on hand and even considering Section 205 of the Act action of the respondent in not giving the credit of the tax deducted at source for which form no.16 A have been produced by the assessee - deductee and consequently impugned demand notice issued under Section 221(1) of the Act cannot be sustained. Concerned respondent therefore, is required to be directed to give credit of tax deducted at source to the assessee- deductee of the amount for which form no.16 A have been produced. [emphasis given] 11. In the light of the above judicial precedents and the discussion (supra), the action of the lower authorities cannot be countenanced. We accordingly set aside the impugned order of the Ld. CIT(A) and direct the assessee to furnish relevant documents before the AO evidencing that the TDS of Rs. 15,85,989/- had been deducted on his salary due for the period January 2019 to March 2019. After verification, the AO shall grant credit for the same. Needless to say, the AO shall allow sufficient opportunity to the assessee and pass a speaking order in this....