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TMI Blog2011 (5) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 27-5-2011 - Shri R.V. Easwar, Shri T.R. Sood, JJ. ORDER Per T.R. Sood, A.M These appeals filed by the Revenue are directed against separate orders of the CIT (A) XXIV, Mumbai dated 11.02.2010 in respective assessment years. 2. Revenue has raised the following common ground in all the assessment years:- 1. 0n the facts and in the circumstances of the case and in law, the learned CIT (A) erred in directing the A. 0. not to recover the amount from the assessee to the extent of TDS certificate not received by the assessee though the assessee failed to comply in respect of his liability towards his claim even after lapse of substantial period of time. 3. The brief facts of the case are that assessee had claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on record. In light of the above the Assessing Officer cannot pick the appellant s letter dated 29th March, 2007 by ignoring all earlier correspondence to evaluate the timeliness of such action. This is a clear case of appellant being denied of his rightful claim. In my view the issue is no longer subjudice. Accordingly, I direct the AO to verify the claim of the appellant and give required credit. In case for any reason credit for the same is not given then, I direct the Assessing Officer not to recover the amount to the said extent and to keep the same in absence as per the decision of the Bombay High Court in case of Yashpal Sanhni vs. Rekha Hajarnavis, Assistant Commissioner of Income-tax others. 5. Before us the learned D.R. su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We have considered the rival submissions carefully. In case of Yashpal Sahni vs. ACIT Ors. 293 ITR 539(Bom) assessee was appointed as Managing Director of a company, which deducted tax at source from his salary. However, TDS certificates were not issued. Some dispute arose between assessee and his employer and ultimately services of the assessee were terminated. Assessee filed return and claimed the amount of tax deducted at source. Credit for the same was not given in the absence of certificate and even interest under section 234B and 234C was also levied. Even the rectification application under section 154 was not entertained. Ultimately penalty proceedings under section 221(1) were initiated and assessee filed writ petition before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible 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 language of section 205 of the Act, it is clear that the bar operates as soon as it is established that the tax has been deducted at source and it is wholly irrelevant as to whether the tax deducted at source is paid to the credit of the Central Government of not and whether the TDS certificate in Form No. 16 has been issued or not. Also the mere fact that the employer may not issue the TDS certificate to the employee does not mean that the liability of the employer cea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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