9911796707
TMI Blog2019 (10) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... ned income and as per 26AS and Ground No. 2 relates to confirming addition of Rs. 1,20,061 being difference between Form No. 16 as provided by the employer and as per ITR. 3. Both the grounds of appeal are being considered together as these are related to each other. 4. Succinct facts are that the assessee has filed return of income on 31.07.2014 declaring total income of Rs. 55,33,060. The case was selected under scrutiny through CASS. In response to notice under section 142(1), the assessee filed details as required but could not file Form No. 16, as it was not available due to dispute with employer. However, after three months the assessee collected Form No. 16 and filed the same before the AO. Meanwhile, the AO directly collected Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not provided. Further, the salary credited in his bank account, as shown by the assessee is not tallied, and there is vast difference. The pattern of tax deduction by the employer in the initial months as compared to last two months give rise to possibility that employer would have considered exemption claimed by the assessee while estimation of salary for the purpose of section 192 of the Act and accordingly, estimated lower salary for the purpose of tax deduction under section 192 of the Act. It is because of resignation of the assessee from the company, the employer with a view to harass the appellant by deducting more tax and not providing the Form No. 16 and thereafter, providing different Form No. 16 in response to notice under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, the employer for some reason decided to keep silence on the month-wise payments to the assessee and furnished such tricky reply in response to notice under section 133(6) of the Act. The Ld.AO without affording opportunity of cross-examination of the employer has ignored the vital facts hence; the addition so made is not sustainable in law and on facts. With regard to disallowance of Rs. 1,20,061, it was contended that difference is due to deduction claimed under chapter VIA of the Act by the assessee. It was further submitted that the amount shown in Form No. 16 by the employer does not match with Form No.26AS and therefore, the AO has grossly erred in making such addition. The learned counsel for the assessee filed comparison date wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, there was difference between two Form No.16 submitted before the AO. However, the AO believed the Form No.16 submitted by the employer of the assessee and disbelieved the Form No.16 submitted by the assessee and treated it as false. However, before treating the same the AO should have verified the correct facts from the employer by calling him and producing records. The perusal of letter received on 23.12.2016 by the AO from Sparsh Technologies (PB-21) shows that they have not furnished individual cheque/ transfer details of the employee on the ground that that same is not traceable in the bank statement. Therefore, the gross salary paid by them and claimed to be at Rs. 87,77,543 is not ascertainable. However, this could be ascertained f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore passing any order. We find that it is pre-decision hearing standard of norm of rule of audi alteram partem. We find that in this instant case, the assessee was not given proper hearing. Therefore, we are of the view that the assessee must be given one more opportunity of hearing and to represent his case. Therefore, we restore this appeal to the file of the AO for reconsideration all grounds of appeal after allowing proper opportunity of being heard in accordance with law and allowing cross examination of the employer of the assessee to the assessee. The AO may issue summons under section 131 of the Act to the employer and ask to produce salary register and payments details and copy of bank statement to verify the payment made to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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